Conditions of Initial Loan. The obligation of Administrative Agent and Lenders to make the initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent: (a) Administrative Agent shall have received all of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent: (i) executed counterparts of this Agreement the Security Agreement, the Trademark Security Agreement and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Date; (ii) a Revolving Note executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lenders; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a party; (iv) such Organization Documents and certifications as Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (v) [reserved]; (vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent; (vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and (viii) evidence that all Required Insurance has been obtained and is in effect; (b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before the Closing Date; (c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent; (d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent; (e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000; (f) [reserved]; (g) [reserved]; (h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion; (i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service; (j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent; (k) [reserved]; (l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion; (m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”); (n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and (o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Conditions of Initial Loan. The obligation of Administrative Agent and the Lenders to make the initial Revolving Loan is subject to the following conditions precedent: (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding a) The Agent shall have received on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) Administrative Agent shall have received all of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent:
the Agent and Lenders, or otherwise be satisfied as to, each of the following: (i) executed counterparts originals of each of this Agreement the Security Agreement, the Trademark Security Agreement and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Date;
(ii) a Revolving Note executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lenders;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement Notes and the other Loan Documents, and the Five Year Facility Credit Agreement and the promissory notes and loan documents referred to therein, together with all schedules and exhibits thereto; (ii) favorable written opinions of special counsel or in-house counsel to the Borrower and the Guarantors dated the Closing Date, addressed to the Agent and the Lenders and satisfactory to the Agent, the Lenders and to Smith Helms Mulliss & Moore, L.L.P., special couxxxx to the Agent, subxxxxxially in the form of Exhibit L attached hereto and incorporated herein by reference; (iii) Organizational Action of the Borrower and each of the Guarantors certified by its secretary or assistant secretary or other appropriate official as of the Closing Date, appointing (in the case of the Borrower) the initial Authorized Representatives and approving and adopting the Loan Documents to which be executed by such Credit Party is a party;
Person, and authorizing the execution and delivery thereof and the incurrence of obligations thereunder; (iv) specimen signatures of officers of the Borrower and each Guarantor executing the Loan Documents on behalf of such Organization Person, certified by the secretary or assistant secretary or other appropriate official of the Borrower or Guarantor, as applicable; (v) the Organizational Documents of the Borrower and certifications each Guarantor certified as Administrative Agent may reasonably require of a recent date by the Secretary of State or other appropriate Governmental Authority of its jurisdiction of incorporation (or other organization, as applicable); (vi) the Operating Documents of the Borrower and each Guarantor certified as of the Closing Date as true and correct by the secretary or assistant secretary or other appropriate official of the Person to evidence that each Credit Party is duly organized whom such Operating Documents relate; (vii) certificates issued as of a recent date by the Secretary of State or formedother appropriate Governmental Authority of its jurisdiction of incorporation (or other organization, and that each Credit Party is validly existingas applicable) as to the due existence and, in if issued by such governmental authority, good standing of the Borrower and each Guarantor therein; (viii) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of the Borrower and each Guarantor as of a recent date by the Secretary of State or other appropriate Governmental Authority of each jurisdiction in which the failure to be qualified to engage in do business in each jurisdiction where its ownership, lease or operation of properties or the authorized so to conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
; (vix) [reserved];
(vi) a solvency certificate from the chief financial officer notice of appointment of the Borrower on behalf initial Authorized Representative of the Borrower in the form attached hereto as of Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent;
C hereto; (viix) a certificate, certificate of an Authorized Representative dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming demonstrating pro forma compliance with the conditions precedent set forth financial covenants contained in paragraphs Sections 8.02 and 8.03, all as of May 2, 1998, substantially in the form of Exhibit M attached hereto; (axi) and an initial Borrowing Notice; (bxii) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 payable by the Borrower on or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction Agent, NationsBank, NMS and the Lenders, including any upfront fee as agreed to in writing; (xiii) historical pro forma consolidated financial statements giving effect to the proposed combination with Saks (the "Saks Acquisition") as set forth in the Borrower's Registration Statement on Form S-4, Registration No.333-60123, as filed with the Securities and Exchange Commission on July 29, 1998 (the "Filing Date") as amended by each amendment thereto (as so amended, the "Registration Statement"), as well as the actual historical consolidated financial statements of the Borrower and its Subsidiaries incorporated by reference in such Registration Statement; (xiv) certificate of an Authorized Representative stating that all conditions precedent to the consummation of the Saks Acquisition as set forth in the Agreement and Plan of Merger dated as of July 4, 1998 (the "Saks Acquisition Agreement") have been satisfied or waived; (xv) fully executed copy of the Saks Acquisition Agreement and other related documents, instruments and agreements requested by the Agent, each certified as true and complete by an Authorized Representative; (xvi) evidence as to the termination of that certain Credit Agreement among Saks, The Chase Manhattan Bank, as Administrative Agent;
, and the other lenders party thereto dated as of October 8, 1996 and repayment in full of all obligations (dother than the undrawn principal amount of the letters of credit then outstanding listed on Schedule 8.04 hereof) Administrative owing thereunder; (xvii) a certificate of an Authorized Representative as to the occurrence or truthfulness, as applicable, of the matters set forth in Section 5.01(b) hereof as of the Closing Date; and (xviii) such other documents, instruments, certificates and opinions as the Agent or any Lender may reasonably request on or prior to the Closing Date in connection with the consummation of the transactions contemplated hereby. (b) Each of the following shall have receivedoccurred or be true: (i) copies of all filing receipts and acknowledgments issued by the appropriate there shall not be any action, suit, investigation or proceeding pending or threatened by, before or otherwise involving any Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence Person that could reasonably be expected to have a material adverse effect on (x) the business, business prospects, results of such recordation operations or condition (financial or otherwise) of the Borrower or its Subsidiaries or (y) the ability of the Borrower or its Subsidiaries to observe and filing, perform the covenants and agreements contained herein or in any other Loan Document or the ability of any Lender to receive the benefit of any remedy provided thereto under any Loan Document or (z) any transaction contemplated hereby; (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as consummation of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the followingSaks Acquisition, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect; and (iii) the Borrower and its Subsidiaries shall be in compliance with respect to all existing financial obligations.
Appears in 1 contract
Samples: Credit Agreement (Proffitts Inc)
Conditions of Initial Loan. The obligation of Administrative Agent and the Lenders to make the initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) Administrative The Agent shall have received all of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before on the Closing Date) and each , in form and substance satisfactory to Administrative Agentthe Agent and Lenders, or otherwise be satisfied as to, each of the following:
(i) executed counterparts originals of each of this Agreement the Security Agreement, the Trademark Security Agreement Notes and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Dateother Loan Documents, together with all schedules and exhibits thereto;
(ii) a Revolving Note executed by favorable written opinions of special counsel or in-house counsel to the Borrower registered and the Guarantors dated the Closing Date, addressed to the Agent and the Lenders and satisfactory to the Agent, the Lenders and to Smith Helms Mulliss & Xxxxe, X.X.P., special couxxxx to the Agent, substantially in the name form of Administrative Agent, for the benefit of the LendersExhibit L attached hereto and incorporated herein by reference;
(iii) such certificates Organizational Action of resolutions the Borrower and each of the Guarantors certified by its secretary or assistant secretary or other actionappropriate official as of the Closing Date, incumbency certificates and/or other certificates appointing (in the case of the Borrower) the initial Authorized Officers of each Credit Party as Administrative Agent may require evidencing Representatives and approving and adopting the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which be executed by such Credit Party is a partyPerson, and authorizing the execution and delivery thereof and the incurrence of obligations thereunder;
(iv) specimen signatures of officers of the Borrower and each Guarantor executing the Loan Documents on behalf of such Organization Person, certified by the secretary or assistant secretary or other appropriate official of the Borrower or Guarantor, as applicable;
(v) a certificate of the secretary or assistant secretary of the Borrower and each Guarantor as to the absence of any change to the Organizational Documents or Operating Documents of the Borrower and certifications each Guarantor since September 17, 1998 or February 18, 1999, respectively, (the date certified copies were last delivered to the Agent);
(vi) certificates issued as Administrative Agent may reasonably require of a recent date by the Secretary of State or other appropriate Governmental Authority of its jurisdiction of incorporation (or other organization, as applicable) as to evidence that each Credit Party is duly organized or formedthe due existence and, and that each Credit Party is validly existingif issued by such governmental authority, in good standing of the Borrower and each Guarantor therein;
(vii) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of the Borrower and each Guarantor as of a recent date by the Secretary of State or other appropriate Governmental Authority of each jurisdiction in which the failure to be qualified to engage in do business in each jurisdiction where its ownership, lease or operation of properties or the authorized so to conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) [reserved];
(vi) a solvency certificate from the chief financial officer notice of appointment of the Borrower on behalf initial Authorized Representative of the Borrower in the form attached hereto as of Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solventC hereto;
(viiix) a certificate, certificate of an Authorized Representative dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming demonstrating compliance with the conditions precedent set forth financial covenants contained in paragraphs (a) Sections 8.01, 8.02 and (b) 8.03, all as of Section 3.3 and clause (o) May 1, 1999, substantially in the form of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effectExhibit M attached hereto;
(bx) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before the Closing Datean initial Borrowing Notice;
(cxi) Administrative Agent shall have received all fees payable by the Borrower on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction Agent, Bank of Administrative AgentAmerica, BAS and the Lenders, including any upfront fee as agreed to in writing;
(dxii) evidence as to the termination of that certain Credit Agreement among the Borrower, Bank of America, as successor in interest to NationsBank, N.A., as Administrative Agent shall have received: (i) copies Agent, and the other agents and lenders party thereto dated as of September 17, 1998 and repayment in full of all filing receipts and acknowledgments issued by obligations owing thereunder;
(xiii) a certificate of an Authorized Representative as to the appropriate Governmental Authority to evidence recordation occurrence or filing necessary to perfect truthfulness, as applicable, of the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (iimatters set forth in Section 5.01(b) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied hereof as of the Closing Date to the satisfaction of Administrative Agent;Date; and
(exiv) Administrative such other documents, instruments, certificates and opinions as the Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing or any Lender may reasonably request on or prior to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date in connection with the consummation of $70,000,000;the transactions contemplated hereby.
(fb) [reserved];
(g) [reserved];
(h) Administrative Agent Each of the following shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;occurred or be true:
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and there shall not be subject any action, suit, investigation or proceeding pending or threatened by, before or otherwise involving any Governmental Authority or other Person that could reasonably be expected to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially material adverse effect on (x) the rights and interests business, business prospects, results of operations or condition (financial or otherwise) of the Lenders Borrower or its Subsidiaries or (taken as a whole and in their capacities as such). The Confirmation Order shall authorize y) the Credit Parties ability of the Borrower or its Subsidiaries to execute, deliver observe and perform all of their obligations under all documents contemplated hereunder the covenants and thereunder and shall contain no term agreements contained herein or provision that contradicts such authorization in any other Loan Document or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions ability of any Lender to receive the effectiveness benefit of the Approved Plan shall have been satisfied any remedy provided thereto under any Loan Document or waived in accordance with the terms thereof, and all transactions (z) any transaction contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicablehereby; and
(oii) Since December 31the Borrower and its Subsidiaries shall be in compliance with respect to all existing financial obligations.
(c) In the good faith judgment of the Agent and the Lenders, 2019there shall not have occurred a material adverse change since January 30, no event1999 in the business, change business prospects, results of operations or condition has occurred that has had(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.facts and information regarding such entities as represented to date;
Appears in 1 contract
Samples: Credit Agreement (Saks Inc)
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders the Banks to make the initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) Loans hereunder is shall be subject to the satisfaction of the following conditions precedent:
(a) Administrative , in addition to the applicable conditions precedent set forth in Section 6.2 below, that the Agent shall have received all of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative the Agent, each duly executed and certified or dated the date of the initial Loans or such other date as is satisfactory to the Agent and in sufficient counterparts (except for the Notes) for each Bank:
(ia) A Note drawn to the order of each Bank executed counterparts by a duly authorized officer (or officers) of this Agreement the Security AgreementBorrower.
(b) A copy of the corporate resolution of the Borrower authorizing the execution, delivery and performance of the Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower.
(c) An incumbency certificate showing the names and titles, and bearing the signatures of, the Trademark Security Agreement officers of the Borrower authorized to execute the Loan Documents and to designate, by delivery of a Schedule of Authorized Representatives or otherwise, officers or employees authorized to request Loans and agree to rates of interest and otherwise agree to transactions with the Agent and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Date;
(ii) a Revolving Note executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lenders;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer Banks in connection with this Agreement and Agreement, certified by the other Loan Documents to which such Credit Party is a party;Secretary or an Assistant Secretary of the Borrower.
(ivd) such Organization Documents and certifications as Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation A copy of properties or the conduct Articles of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer Incorporation of the Borrower on behalf with all amendments thereto, certified by the appropriate governmental official of the jurisdiction of its incorporation as of a date not more than 15 days prior to the Closing Date.
(e) A long-form certificate of good standing for the Borrower in the form attached hereto jurisdiction of its incorporation, certified by the appropriate governmental officials as Exhibit H certifying that the Borrower and its subsidiaries on of a consolidated basis after giving effect date not more than 15 days prior to the Transactions to occur on the Closing Date, are solvent;.
(viif) a certificate, dated A copy of the Closing Date and signed by an Authorized Officer bylaws of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied certified as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation Secretary or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as an Assistant Secretary of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];Borrower.
(g) [reserved];An opinion of Xxxxxxx X. Xxxxxx, Esq., counsel to the Borrower, addressed to the Bank, in substantially the form of Exhibit F to the Purchase Agreement.
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office A copy of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully Purchase Agreement, duly executed counterpart of by the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) parties thereto, together with evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and that all conditions precedent specified in Section 5.1 of the Required Lenders shall Purchase Agreement have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effectsatisfied.
Appears in 1 contract
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders the Lender to make the its initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) Administrative Agent shall have received all The Lender's receipt of the following, each of which shall be originals, telecopies originals or other electronic transmissions facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized a Responsible Officer of the signing Credit PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agentthe Lender and its legal counsel:
(i) executed counterparts of this Agreement the Security Agreement, sufficient in number for distribution to the Trademark Security Agreement Lender and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing DateBorrower;
(ii) if requested by the Lender, a Revolving Note executed by the Borrower registered in the name of Administrative Agent, for the benefit favor of the LendersLender, in a principal amount equal to the amount of the Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Responsible Officers of each Credit Party the Borrower as Administrative Agent the Lender may require evidencing to establish the identity, identities of and verify the authority and capacity of each Authorized Responsible Officer thereof authorized to act as an Authorized a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Credit Party the Borrower is a party;
(iv) such Organization Documents and certifications evidence as Administrative Agent the Lender may reasonably require to evidence verify that each Credit Party the Borrower is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease including certified copies of the Borrower's Organization Documents, certificates of good standing and/or qualification to engage in business;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements which has or the conduct of its business requires such qualification, except to the extent that failure to do so could not be reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer an opinion of counsel to the Borrower on behalf of the Borrower substantially in the form attached hereto as of Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solventD;
(vii) a certificate, dated evidence that the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance Existing Credit Agreement has been or concurrently with the conditions precedent set forth initial Loan will be terminated and all Indebtedness outstanding thereunder has been or concurrently with the initial Loan will be repaid in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2full; and
(viii) evidence that all Required Insurance has been obtained and is in effect;such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require.
(b) Administrative Agent and Lenders shall have received payment in full of all Any fees required to be paid under Section 2.9 on or before the Closing Date;Date shall have been paid.
(c) Administrative Agent The Borrower shall have received paid all Attorney Costs of the Lender to the extent invoiced prior to or on or before the Closing Date, lien searches plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (including UCC, tax and judgment Lien searches) demonstrating provided that such estimate shall not thereafter preclude a final settling of accounts between the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(hLender), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders each Lender to make the its initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals, telecopies originals or other electronic transmissions facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized a Principal Officer of the signing Credit PartyBorrower or the Parent, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement the Security Agreement, sufficient in number for distribution to the Trademark Security Agreement Administrative Agent, each Lender, the Parent and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing DateBorrower;
(ii) a Revolving Note executed by the Borrower registered in the name favor of Administrative Agent, for the benefit of the Lenderseach Lender requesting a Note;
(iii) the Guaranty executed by the Parent;
(iv) such certificates of resolutions or other actionaction (including, in the case of the Borrower, (A) certified copies of unanimous written resolutions of the board of managing directors, inter alia approving the transactions contemplated by this Agreement, and (B) written resolutions of the sole shareholder of the Borrower inter alia approving, among other matters, such resolutions of the board of managing directors), incumbency certificates and/or other certificates of Authorized Principal Officers of each Credit Party of the Borrower and the Parent as the Administrative Agent may require evidencing request to establish the identity, identities of and verify the authority and capacity of each Authorized Principal Officer thereof authorized to act as an Authorized a Principal Officer in connection with this Agreement and the other Loan Documents to which such Credit Party the Borrower or the Parent is a party;
(ivv) such Organization Documents and certifications evidence as the Administrative Agent may reasonably require request to verify that each of the Borrower and the Parent is duly incorporated, validly existing and in good standing in its jurisdiction of incorporation, including (A) certified copies of the certificate of incorporation and bylaws of the Parent, (B) certificates of existence and good standing (or their equivalent) for each of the Borrower and the Parent in its jurisdiction of incorporation, and (C) a copy of the articles of association (statuten) of the Borrower as well as an extract (uittreksel) from the relevant Chamber of Commerce and Industry (Xxxxx van Koophandel en Fabrieken) of the Borrower;
(vi) a certificate signed by a Principal Officer of the Parent (A) certifying that there has been no event or circumstance since December 31, 2004, which has had or could be reasonably expected to have a Material Adverse Effect, and (B) showing the Debt Ratings of the Parent on the Closing Date;
(vii) a certificate signed by a Principal Officer of the Borrower confirming that neither the Loans nor the Aggregate Commitments would cause any borrowing, guaranteeing or similar limit binding on the Borrower to be exceeded.
(viii) an opinion of the Assistant General Counsel of the Parent, substantially in the form of Exhibit C;
(ix) an opinion of Goldberg, Kohn, Bell, Black, Xxxxxxxxxx & Moritz, Ltd., substantially in the form of Exhibit D;
(x) an opinion of Netherlands’ counsel to the Borrower, substantially in the form of Exhibit G;
(xi) if applicable, a copy of (A) the request for advice from each (central) works council with jurisdiction over the transactions contemplated by this Agreement, and (B) the positive advice from such works council which contains no condition, which if complied with, could result in a breach of the Loan Documents;
(xii) evidence that each the $250,000,000 Five-Year Credit Party Agreement dated as of April 26, 2001 (as amended, the “2001 Credit Agreement”) among Parent, the lenders party thereto, and Bank of America, as administrative agent, has been or concurrently with the Closing Date is duly organized or formedbeing terminated, and that each Credit Party is validly existingall outstanding amounts owing to the lenders thereunder have been or concurrently with the Closing Date are being paid in full; and
(xiii) such other assurances, in good standing and qualified to engage in business in each jurisdiction where its ownershipcertificates, lease documents, consents or operation of properties opinions as the Administrative Agent or the conduct Majority Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date pursuant to the Fee Letters shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower and the Parent shall have paid all Attorney Costs of its business requires such qualification, except the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings, provided that failure to do so such estimate shall not thereafter preclude a final settling of accounts between the Borrower, the Parent and the Administrative Agent.
(d) No event or circumstance shall have occurred since December 31, 2004 that has had or could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;.
(e) Administrative Agent No Lender shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of advised the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except writing that such applicable order may be further amendedLender has not received information from the Borrower, supplemented the Parent or otherwise modified in accordance sufficient for such Lender to comply with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: applicable “Know Your Customer” Laws (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as suchincluding Wet Identificatie Financiele Dienstverlening). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Conditions of Initial Loan. The amendment and restatement of the Existing Credit Agreement and the obligation of Administrative Agent and Lenders each Lender to make the its initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall be originals, originals or telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Partya Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement the Security Agreement, sufficient in number for distribution to the Trademark Security Agreement Administrative Agent, each Lender and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing DateBorrower;
(ii) a Revolving Note executed by the Borrower registered in the name favor of Administrative Agent, for the benefit of the Lenderseach Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Responsible Officers of each Credit Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Responsible Officer thereof authorized to act as an Authorized a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a partyDocuments;
(iv) such Organization Documents documents and certifications as the Administrative Agent may reasonably require to evidence that each Credit Party the Borrower is duly organized or formed, and that each Credit Party the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved]a favorable opinion of the general counsel of the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit D and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vi) a solvency certificate from of a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that execution, delivery and performance by the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on validity against the Closing DateBorrower of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are solventso required;
(vii) a certificate, dated the Closing Date and certificate signed by an Authorized a Responsible Officer of the Borrower, confirming compliance with certifying (A) that the conditions precedent set forth specified in paragraphs (aSections 4.02(a) and (b) of Section 3.3 and clause have been satisfied, (oB) of this Section 3.2; and
(viii) evidence that all Required Insurance there has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on no event or before circumstance since the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred Audited Financial Statements that has had, had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the current Debt Ratings; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The amounts outstanding under the Existing Credit Agreement shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower 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 prior to or on the Closing 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 Borrower and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders to make This Agreement shall take effect from the initial Revolving Loan (including, for first day that the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) Administrative Agent shall have received all counterparts hereof signed by the Company on behalf of each of the followingFunds, the Administrative Agent and the Banks, and each of which the conditions set forth in this SECTION 4.1 has been waived by the Administrative Agent and each Bank or met.
(a) The Agents shall be originalshave received from the Company a certificate, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (ordate hereof, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent:its Secretary or Assistant Secretary as to
(i) executed counterparts resolutions of its board of trustees then in full force and effect authorizing the execution, delivery and performance of this Agreement the Security Agreement, the Trademark Security Agreement Notes and the Copyright Security Agreement required by Administrative Agent each other Credit Document to be executed on the Closing Dateby it;
(ii) a Revolving Note the incumbency and signatures of those of its officers or agents authorized to act with respect to this Agreement, the Notes and each other Credit Document executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lendersit;
(iii) such certificates the Company's valid existence as evidenced by a certificate issued by the secretary of resolutions state and appended to the state of its relevant certificate of its Secretary or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a party;Assistant Secretary; and
(iv) the fact that the agreements delivered by the Funds pursuant to SECTION 4.1(D) constitute all such Organization Documents agreements between the Funds and certifications as the Adviser; upon which certificates the Administrative Agent and each Bank may reasonably require conclusively rely until they shall have received a further certificate from the Company cancelling or amending such prior certificate.
(b) The Administrative Agent shall have received an opinion, dated the date hereof and addressed to the Agents and all Banks, from Xxxxxxxx Ronon Xxxxxxx & Xxxxx, L.L.P., counsel to the Funds, substantially in the form of EXHIBIT 4.1(B)-1, which the Company hereby expressly authorizes and instructs such counsel to prepare and deliver.
(c) The Administrative Agent shall have received evidence that each Credit Party is duly organized or formedof payment of all accrued and unpaid fees, costs and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except expenses to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that the Borrower then due and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur payable on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer together with Attorney Costs of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 the extent invoiced prior to or on or before the Closing Date;, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent's reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Funds and the Administrative Agent), including any such costs, fees and expenses arising under or referenced in SECTION 2.8(A) and those then due and payable pursuant to SECTION 9.4.
(cd) The Administrative Agent shall have received on or before copies of each investment advisory agreement between the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower Company and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;Adviser.
(e) The Agents shall have received an initial Borrowing Base Certificate for each Fund.
(f) The Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];an initial Allocation Notice.
(g) [reserved];
(h) The Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office copies of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart most recent prospectus and statement of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in additional information for each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse EffectFund.
Appears in 1 contract
Conditions of Initial Loan. The amendment and restatement of the Existing Credit Agreement and the obligation of Administrative Agent and Lenders each Lender to make the its initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent's receipt of the following, each of which shall be originals, originals or telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Partya Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement the Security Agreement, sufficient in number for distribution to the Trademark Security Agreement Administrative Agent, each Lender and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing DateBorrower;
(ii) a Revolving Note executed by the Borrower registered in the name favor of Administrative Agent, for the benefit of the Lenderseach Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Responsible Officers of each Credit Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Responsible Officer thereof authorized to act as an Authorized a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a partyDocuments;
(iv) such Organization Documents documents and certifications as the Administrative Agent may reasonably require to evidence that each Credit Party the Borrower is duly organized or formed, and that each Credit Party the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved]a favorable opinion of Xxxx X. Xxxxxxx, counsel to the Borrower addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vi) a solvency certificate from the chief financial officer of a Responsible Officer of the Borrower on behalf either (A) attaching copies of all consents, licenses and approvals required in connection with the Borrower in the form attached hereto as Exhibit H certifying that execution, delivery and performance by the Borrower and its subsidiaries on the validity against the Borrower of the Loan Documents to which it is a consolidated basis after giving effect to the Transactions to occur on the Closing Dateparty, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are solventso required;
(vii) a certificate, dated the Closing Date and certificate signed by an Authorized a Responsible Officer of the Borrower, confirming compliance with Borrower certifying (A) that the conditions precedent set forth specified in paragraphs (aSections 4.02(a) and (b) of Section 3.3 and clause have been satisfied, (oB) of this Section 3.2; and
(viii) evidence that all Required Insurance there has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on no event or before circumstance since the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred Audited Financial Statements that has had, had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The amounts outstanding under the Existing Credit Agreement shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing 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 Borrower and the Administrative Agent).
(e) The Closing Date shall have occurred on or before November 15, 2006. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders the Banks to make the initial Revolving Loan (including, for hereunder and of the avoidance of doubt, the deemed issuances of Agent to issue Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is shall be subject to the satisfaction of the following conditions precedent:
(a) Administrative , in addition to the applicable conditions precedent set forth in Section 6.2 below, that the Agent shall have received all of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative the Agent, each duly executed and certified or dated as of the date of this Agreement or such other date as is satisfactory to the Agent:
(ia) executed counterparts of this Agreement the Security Agreement, the Trademark Security Agreement and the Copyright Security Agreement required by Administrative Agent The Notes payable to be executed on the Closing Date;
(ii) a Revolving Note each Bank executed by Borrower registered in the name of Administrative Agent, for the benefit a duly authorized officer (or officers) of the Lenders;
Company (iii) such certificates of resolutions or other actionCompany and Borrowing Subsidiary, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a party;
(iv) such Organization Documents and certifications as Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;if applicable).
(b) Administrative Agent The Pledge Agreements and Lenders shall have received payment in full lien, tax and judgment searches reasonably satisfactory to the Agent, together with delivery of all fees required to be paid under Section 2.9 on any certificate evidencing the stock or before the Closing Date;Ownership Interest of Foreign Subsidiaries pledged thereby and executed assignments separate from certificate (stock powers) for such certificates.
(c) Administrative Agent shall have received on The Guaranties required hereunder, executed by a duly authorized officer (or before the Closing Date, lien searches (including UCC, tax and judgment Lien searchesofficers) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date each Subsidiary required to the satisfaction of Administrative Agent;be a Guarantor hereunder.
(d) Administrative Agent shall have received: A certificate or certificates of the Secretary or an Assistant Secretary of each Borrower, attesting to and attaching (i) copies a copy of all filing receipts the corporate resolution of the Company authorizing the execution, delivery and acknowledgments issued by performance of the appropriate Governmental Authority to evidence recordation or filing necessary to perfect Loan Documents, (ii) an incumbency certificate showing the Lien of Administrative Agent on names and titles, and bearing the Collateral or other satisfactory evidence signatures of, the officers of such recordation and filingBorrower authorized to execute the Loan Documents, and (iiiii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as copy of the Closing Date to the satisfaction Organizational Documents of Administrative Agent;such Borrower with all amendments thereto.
(e) Administrative Agent shall have received A Certificate of Good Standing or the equivalent for any Foreign Subsidiary that is a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as Subsidiary in the jurisdiction of its incorporation, certified by the Closing Date of $70,000,000;appropriate governmental officials.
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written An opinion (of counsel to the Company and any Borrowing Subsidiary, addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by Banks, in substantially the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each form of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.Exhibit F.
Appears in 1 contract
Samples: Credit Agreement (Graco Inc)
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders each Lender to make the its initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall (to the extent applicable) be originals, telecopies (1) originals or other electronic transmissions copies (followed promptly by originals) unless otherwise specified, each (2) properly executed by an Authorized a Responsible Officer of the signing Credit Loan Party, each (3) dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent:
(i4) executed counterparts of this Agreement the Security Agreement, the Trademark Security Agreement and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Date;
(ii) a Revolving Note executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lenders;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a party;
(iv) such Organization Documents and certifications as Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and each of the Required Lenders shall have been entered by Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Bankruptcy Court (Administrative Agent, each Lender and the “Approval Order”)Company;
(nii) The order confirming Notes executed by the Approved Plan Company in favor of each Lender requesting Notes;
(iii) a certificate of the Secretary or an Assistant Secretary of the Company certifying names and true signatures of officers of the Company authorized to execute and deliver this Agreement and the Notes and the other documents to be delivered hereunder from time to time;
(iv) certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action with respect to this Agreement and the Notes, including copies of the certificate of incorporation and bylaws of the Company and a certificate of good standing with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence Company dated within 30 days of the Closing Date: Date (ior such longer period as agreed to by the Administrative Agent in its sole discretion), such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Company;
(v) any appeal relating a favorable opinion of Xxxxxx & Xxxxxxx LLP, special U.S. counsel to the distributions Loan Parties addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(or vi) a certificate signed by a Responsible Officer of the allocation of such distributionsCompany certifying (A) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect no Default exists on the rights and interests of date hereof; (B) that there has been no event or circumstance since the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred Audited Financial Statements that has had, had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.; and (C) the current Debt Ratings;
Appears in 1 contract
Samples: Credit Agreement (Amazon Com Inc)
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders the Banks to make the initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is shall be subject to the satisfaction of the following conditions precedent:
(a) Administrative , in addition to the applicable conditions precedent set forth in SECTION 6.2 below, that the Agent shall have received all of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative the Agent, each duly executed and certified or dated the date of the initial Loan or such other date as is satisfactory to the Agent:
(ia) This Agreement executed counterparts by duly authorized officers of this Agreement the Security AgreementBorrower, the Trademark Security Agreement Agent and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Date;each Bank.
(iib) a Revolving Note The Notes executed by Borrower registered in the name of Administrative Agent, for the benefit a duly authorized officer (or officers) of the Lenders;Borrower.
(iiic) such certificates of resolutions The Guaranty executed by a duly authorized officer (or other action, incumbency certificates and/or other certificates of Authorized Officers officers) of each Credit Party as Administrative Agent may require evidencing Guarantor.
(d) A copy of the identitycorporate resolution of the Borrower and each corporate Guarantor authorizing the execution, authority delivery and capacity performance of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Credit Party it is a party;, certified by the Secretary or an Assistant Secretary of the applicable corporation.
(ive) such Organization Documents An incumbency certificate showing the names and certifications as Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formedtitles, and that each Credit Party is validly existingbearing the signatures of, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer officers of the Borrower on behalf of and each corporate Guarantor authorized to execute the Borrower Loan Documents and, in the form attached hereto as Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer case of the Borrower, confirming compliance with to request Loans hereunder, certified by the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on Secretary or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as an Assistant Secretary of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;applicable corporation.
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated A copy of the Closing Date) Articles or Certificate of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower Incorporation and the other Credit Parties, and (ii) each local counsel for By-laws of the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 corporate Guarantor with all amendments thereto, certified by the appropriate office Secretary or an Assistant Secretary of the Internal Revenue Service;
(j) Administrative Agent shall applicable corporation, PROVIDED, that in lieu of submitting new copies of such documents, the Borrower and each Guarantor may submit updating certificates for copies of such documents that have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory been submitted to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect within twelve months prior to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effecthereof.
Appears in 1 contract
Samples: Credit Agreement (Merrill Corp)
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders If the Lender decides to make any additional Loans under the initial Revolving Loan (including, for Discretionary Facility in the avoidance of doubtLender’s discretion, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of Borrower shall deliver to the Borrower or Lender (prior to the Lender making any other Credit Parties outstanding on the Closing DateDiscretionary Loan) hereunder is subject to satisfaction of the following conditions precedent:
(a) Administrative Agent shall have received all of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent:the Lender, each duly executed and certified or dated the date hereof or such other date as is satisfactory to the Lender.
(ia) The Discretionary Note, duly executed counterparts of this Agreement by the Borrower.
(b) The May Security Agreement, duly executed by the Trademark Security Agreement Borrower.
(c) The Warrants.
(d) The Financing Statements, duly authorized by the Borrower.
(e) A Secretary’s Certificate certifying: (1) a copy of the Articles of Incorporation of the Borrower with all amendments thereto, (2) a copy of the Bylaws of the Borrower with all amendments thereto, (3) a copy of the corporate resolutions of the Borrower authorizing the execution, delivery and performance of the Copyright Security Agreement Loan Documents, and (4) the names, titles, and signatures of the officers of the Borrower authorized to execute the Loan Documents and to request advances hereunder.
(f) Copies of the policies of insurance or other evidence acceptable to the Lender in its absolute discretion showing that the insurance required by Administrative Agent to be executed on the Closing Date;
(ii) a Revolving Note executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lenders;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this May Security Agreement and the other Loan Documents to which such Credit Party is a party;in full force and effect.
(ivg) such Organization Documents Such collateral audits, equipment appraisals and certifications lien searches as Administrative Agent the Lender may reasonably require to evidence that request, each Credit Party is duly organized or formedin form and substance, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except conducted by auditors/appraisers/search services acceptable to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;Lender in its sole discretion.
(vh) [reserved];
(vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment Satisfaction in full of all fees required Obligations or other obligations due and payable from Borrower to be paid under Section 2.9 on Lender or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied Xxxxxx as of the Closing Date date of such additional loan, including, without limitation, all amounts due and payable with respect to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower Lease and the other January Discretionary Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;Agreement.
(i) Borrower The Subordination and each other Credit Party shall have Intercreditor Agreement duly executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;by Xxxxxx.
(j) Administrative Agent shall have received a fully That certain Representation Acknowledgement duly executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;by Xxxxxx.
(k) [reserved];That certain Amendment to Warrants duly executed by the Borrower.
(l) Administrative Agent shall have received (i) evidence True, correct, fully-executed and complete copies of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC the Xxxxxx Note and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;all documents related thereto.
(m) An order, which, for Such other documents or instruments as the avoidance of doubt, Lender may be request to consummate the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents transaction contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effecthereby.
Appears in 1 contract
Conditions of Initial Loan. The obligation of Administrative Agent and Lenders each Lender to make the its initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received all Agent’s receipt of the following, each of which shall (to the extent applicable) be originals, telecopies (1) originals or other electronic transmissions copies (followed promptly by originals) unless otherwise specified, each (2) properly executed by an Authorized a Responsible Officer of the signing Credit Loan Party, each (3) dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agent:
(i4) executed counterparts of this Agreement the Security Agreement, the Trademark Security Agreement and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Date;
(ii) a Revolving Note executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lenders;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a party;
(iv) such Organization Documents and certifications as Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower in the form attached hereto as Exhibit H certifying that the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretion;
(i) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent shall have received a fully executed counterpart of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and each of the Required Lenders shall have been entered by Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Bankruptcy Court (Administrative Agent, each Lender and the “Approval Order”)Company;
(nii) The order confirming Notes executed by the Approved Plan Company in favor of each Lender requesting Notes;
(iii) a certificate of the Secretary or an Assistant Secretary of the Company certifying names and true signatures of officers of the Company authorized to execute and deliver this Agreement and the Notes and the other documents to be delivered hereunder from time to time;
(iv) certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action with respect to this Agreement and the Notes, including copies of the certificate of incorporation and bylaws of the Company and a certificate of good standing with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence Company dated within 30 days of the Closing Date: Date (ior such longer period as agreed to by the Administrative Agent in its sole discretion), such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Company;
(v) any appeal relating a favorable opinion of Sidley Austin LLP, special U.S. counsel to the distributions Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; CHAR1\1461746v12
(or vi) a certificate signed by a Responsible Officer of the allocation of such distributionsCompany certifying (A) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect no Default exists on the rights and interests of date hereof; (B) that there has been no event or circumstance since the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred Audited Financial Statements that has had, had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings; and
(vii) all Regulatory Information reasonably requested by a Lender at least five (5) Business Days prior to the Closing Date.
(b) Any fees required to be paid to the Arrangers, the Administrative Agent and the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid (subject to such limitations as shall have been agreed between the Administrative Agency and the Company) 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 three Business Days prior to the Closing 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).
(d) The Administrative Agent shall have received evidence that, prior to or simultaneously on the Closing Date, the Credit Agreement, dated as of September 5, 2014, among the Borrowers, the lenders party thereto and Bank of America, as administrative agent, has been terminated and all amounts owing thereunder have been paid in full. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Amazon Com Inc)
Conditions of Initial Loan. The obligation obligations of Administrative Agent and Lenders NFF to make Loans hereunder shall not become effective until the initial Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding date on the Closing Date) hereunder is subject to satisfaction which each of the following conditions precedent:are satisfied to the sole satisfaction of NFF (or waived in accordance with Section 6.3) (the “Closing Date”):
(a) Administrative Agent NFF shall have received all of this Agreement and the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly Note duly executed by an Authorized Officer Borrower (together with the Security Documents, the “Loan Documents”).
(b) NFF shall have received payment of all fees (including the signing Credit Party, each dated Facility Fee and the Closing Date (or, in the case of certificates of governmental officials, a recent date Documentation Fee) and other amounts due and payable to NFF on or before the Closing Date, including, to the extent invoiced, all out-of-pocket expenses (including fees, charges and disbursements of counsel) and each in form and substance satisfactory required to Administrative Agent:be reimbursed or paid by Borrower under the Loan Documents.
(c) NFF shall have received (i) executed counterparts of this Agreement the Security Agreement, the Trademark a Security Agreement and the Copyright Security Agreement required by Administrative Agent to be executed on the Closing Date;
(ii) a Revolving Note executed by Borrower registered in the name of Administrative Agent, for the benefit of the Lenders;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which such Credit Party is a party;
(iv) such Organization Documents and certifications as Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) [reserved];
(vi) a solvency certificate from the chief financial officer of the Borrower on behalf of the Borrower substantially in the form attached hereto as Exhibit H certifying that E (the Borrower and its subsidiaries on “Security Agreement”) duly executed by Borrower, (ii) a consolidated basis after giving effect Bank Account Pledge Agreement duly executed by Borrower; (iii) a Deposit Account Control Agreement with respect to the Transactions Cash Collateral Account, in form and substance satisfactory to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) NFF; and (biv) of Section 3.3 all other documents, information and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained fees necessary and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before perfect NFF’s security interest in the Closing Date;
Cash Collateral (c) Administrative Agent shall have received on or before as defined in the Closing DateSecurity Agreement), lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral but not limited to all necessary UCC financing statements of Borrower and (collectively, the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;“Security Documents”).
(d) Administrative Agent NFF shall have received: (i) copies received the draw schedule showing the timing of all filing receipts disbursements of the Loan and acknowledgments issued by a calculation showing the appropriate Governmental Authority total amount of interest expense to evidence recordation or filing necessary to perfect the Lien of Administrative Agent be paid on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of Loan during the Closing Date to the satisfaction of Administrative AgentInterest Only Period;
(e) Administrative Agent NFF shall have received evidence of the investment of $1,300,000 by Borrower in the Project;
(f) NFF shall have received true, correct and complete copies of the articles of incorporation and the bylaws of Borrower.
(g) NFF shall have received a recent (not more than thirty (30) days old) search of UCC financing statements, litigation and judgment and tax liens.
(h) NFF shall have received evidence of the termination of that certain line of credit from Xxxxx Fargo Bank, N.A. to Borrower, and the termination of liens related thereto;
(i) NFF shall have received a certificate of an officer of Borrower in substantially the form of Exhibit C certifying, among other things, that attached or appended to such certificate is a true and correct copy of (i) the articles of incorporation and by-laws of Borrower and (ii) the resolutions adopted by the Board of Directors of Borrower authorizing the execution, delivery and performance of the Loan Documents.
(j) NFF shall have received a completed Borrowing Base Certificate community benefit impact survey (the “Community Benefit Impact Survey”).
(k) NFF shall have received, in form and a pro forma Compliance Certificate evidencing substance satisfactory to Administrative AgentNFF, the following documents:
(i) Borrower’s reasonable satisfaction that Borrower has Minimum Liquidity as most recent cash flow projection forecasting the next twelve (12) months of operations, including revenues, expenses and capital expenditures;
(ii) Borrower’s statement of income and expenses (A) for the last full year completed prior to the Closing Date of $70,000,000and (B) for the year to date through October 31, 2018;
(fiii) [reserved];A Good Standing Certificate from the state of Borrowers jurisdiction of organization dated within sixty (60) days of closing; and
(giv) [reserved];True, correct and complete copies of all insurance policies and valid certificates of insurance required pursuant to Section 4.15.
(hl) Administrative Agent NFF shall be provided with true, correct and complete copies of all fully executed agreements, instruments and documents which evidence, secure or guaranty payment or performance of all indebtedness, including but not limited to its the Regulation A+ offering (the “Regulation A+ Offering”), all of which must be acceptable to NFF in its sole discretion.
(m) NFF shall be provided with a true, correct and complete copy of the fully executed letter of interest from Microsoft Corporation to purchase $1,000,000 of securities of Borrower pursuant to the Regulation A+ Offering.
(n) NFF shall have received a favorable written opinion (addressed to Administrative Agent and Lenders NFF and dated as of the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal the counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable satisfactory to Administrative Agent in its sole discretion;NFF.
(io) Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(j) Administrative Agent NFF shall have received a fully executed counterpart of such additional documents, agreements and certificates as NFF shall reasonably request, and all corporate and other proceedings, documents, agreements and certificates and all legal matters in connection with the Term Loan/ABL Intercreditor transactions contemplated by this Agreement shall be in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC NFF and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicable; and
(o) Since December 31, 2019, no event, change or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effectcounsel.
Appears in 1 contract
Samples: Loan Agreement (TechSoup Global)
Conditions of Initial Loan. The obligation of Administrative Agent and the Lenders to make the initial Loan under the Revolving Loan (including, for the avoidance of doubt, the deemed issuances of Letters of Credit in replacement of, or as a backstop for, letters of credit of the Borrower or the other Credit Parties outstanding on the Closing Date) hereunder Facility is subject to satisfaction of the following conditions precedentprecedent that:
(a) Administrative each of the conditions to making the Revolving Credit Facility available to the Borrowers, as set forth in Section 5.1, shall have been satisfied on or prior to the date of the initial Loan;
(b) the representations and warranties of UniCapital and the Credit Parties set forth in Article VI and in each of the other Loan Documents shall be true and correct in all material respects on and as of the date of such Loan, with the same effect as though such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties expressly relate to an earlier date;
(c) the Borrowing Affiliate with respect to such Loan shall have executed and delivered to the Agent an Assumption Letter, and each Borrower and the Agent shall have executed such Assumption Letter and the Borrowing Affiliate shall have delivered to the Agent all other agreements, instruments and documents required by such Assumption Letter;
(d) the Borrowing Affiliate with respect to such Loan shall have delivered to the Agent (i) Facility Guaranties fully executed by any Beneficial Owner of such Borrowing Affiliate, by each Subsidiary of any such Beneficial Owner (other than such Borrowing Affiliate), by each Subsidiary of such Borrowing Affiliate and by the Applicable Intermediary (if any); (ii) Pledge Agreements fully executed by the appropriate pledgors, granting a security interest in all Pledged Interests with respect to each such Beneficial Owner, such Borrowing Affiliate, each Subsidiary of any Beneficial Owner, each Subsidiary of such Borrowing Affiliate, and the Applicable Intermediary (if any); and (iii) Security Agreements fully executed by such Borrowing Affiliate, any Beneficial Owner of such Borrowing Affiliate, each Subsidiary of any Beneficial Owner, each Subsidiary of such Borrowing Affiliate, and the Applicable Intermediary (if any);
(e) the Agent shall have received all substantially final drafts of the following a reasonable period of time prior to the date of the Loan, an organized pre-closing of the required documentation shall have occurred at least one Business Day prior to the date of the Loan, and the Agent shall have received final versions of the following, each of which shall be originals, telecopies or other electronic transmissions (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Administrative Agentthe Agent and the Lenders, on or prior to the date of the Loan:
(i) executed counterparts each of this Agreement the Security Agreementdocuments and instruments (including without limitation the opinions of counsel, the Trademark Security Agreement resolutions of boards of directors or other appropriate governing bodies or committees, the specimen signatures, officer's certificates, Organizational Documents, Operating Documents, and governmental certificates of existence, qualification, good standing and assumed name) required by Section 5.1 as if such Borrowing Affiliate had been a Borrowing Affiliate (and its Beneficial Owner, their respective Subsidiaries and the Copyright Security Agreement required by Administrative Agent to be executed Applicable Intermediary (if any) had been in such positions) on the Closing Date, provided that if UniCapital or any Non-SPE Credit Party has previously delivered such opinions, resolutions, specimen signatures, officer's certificates and governmental certificates in connection with the Closing Date or a Loan, it shall not be required to re-submit any such documents in connection with a subsequent Loan except to the extent (1) the prior opinions or resolutions did not cover any additional Loan Documents executed by UniCapital or Non-SPE Credit Party in connection with such subsequent Loan, or (2) the specimen signatures or officer's certificates are no longer accurate, or (3) any Organizational Document or Operating Agreement has been amended, modified or supplemented or there are any additional Organizational Documents or Operating Agreements;
(ii) a Revolving Note executed by Borrower with respect to each Financed Aircraft registered in the name United States, the favorable written opinion with respect to the Loan Documents and the transactions contemplated thereby of Administrative AgentFAA Counsel dated the Closing Date, for addressed to the benefit Agent (on behalf of itself and the Lenders), substantially in the form of Exhibit G-2 or otherwise reasonably satisfactory to special counsel to the Agent;
(iii) such certificates of resolutions or with respect to every other actionFinanced Aircraft, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized favorable written opinion with respect to act as an Authorized Officer in connection with this Agreement the Loan Documents and the other Loan Documents transactions contemplated thereby of local counsel in each Applicable Foreign Jurisdiction dated the Closing Date, addressed to which such Credit Party is a partythe Agent (on behalf of itself and the Lenders), substantially in the form of Exhibit G-3 or otherwise reasonably satisfactory to special counsel to the Agent;
(iv) such Organization Documents and certifications as Administrative Agent may reasonably require to certificates of insurance from qualified brokers of aircraft insurance or other evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except satisfactory to the extent Agent, evidencing all insurance required by the Loan Documents (including without limitation all insurance required by Exhibit M with respect to each Aircraft that failure is to do so could not reasonably be expected to have a Material Adverse EffectFinanced Aircraft);
(v) [reserved]an initial Borrowing Notice;
(vi) a solvency certificate from the chief financial officer of an Authorized Representative containing computations of the Borrower on behalf Borrowing Base, demonstrating compliance with the Concentration Restrictions and providing information about the Financed Aircraft, in each case after giving effect to such Loan and any related Financed Aircraft;
(vii) fully-executed Uniform Commercial Code financing statements appropriate for filing in all places required by applicable law to perfect the Liens of the Borrower Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Agent may require, including without limitation:
(1) the delivery by the Borrowers of all stock certificates and other certificates, if any, evidencing ownership of any Pledged Interests, accompanied in each case by duly executed stock or transfer powers (or other appropriate transfer documents) in blank affixed thereto; and
(2) the delivery by the Borrowers of "control agreements" that have been executed by the respective issuers (and consented to by the respective Credit Parties) with respect to any uncertificated Pledged Interests;
(3) with respect to each Financed Aircraft registered in the form attached hereto as Exhibit H certifying that United States or the Lien on which is to be recorded in the United States, evidence of the filing with the FAA Recording Office of the Security Agreement (and all supplements thereto) executed by the Applicable Borrower and any Applicable Intermediary and all other documents required by such office or applicable law in order to maintain a first priority perfected Lien on such Financed Aircraft, and the Eligible Lease thereof;
(4) with respect to each other Financed Aircraft, evidence of the filing with each applicable recording office in each Applicable Foreign Jurisdiction of all documents required by such office or any Applicable Foreign Aviation Law in order to maintain a first priority perfected Lien on such Financed Aircraft, the Eligible Lease thereof or, if applicable, the stock or beneficial interest in the Applicable Borrower;
(5) a copy of the executed purchase agreement and executed bill xx sale evidencing the purchase by the Applicable Borrower of each Financed Aircraft;
(6) copies of the certificates of aircraft registration issued by the FAA and certificates of airworthiness issued by the FAA, in each case with respect to each Aircraft registered in the United States; and
(7) evidence of registration and other applicable qualification issued by any Applicable Foreign Jurisdiction to the extent such registration or qualification is required by an Applicable Foreign Aviation Law, in each case with respect to each Aircraft not registered in the United States;
(viii) results of a search of Liens filed with the FAA or any Applicable Foreign Jurisdiction with respect to any Aircraft that is or is to be a Financed Aircraft under the initial Loan;
(ix) three (3) Qualified Appraisals, each prepared by a separate Qualified Appraiser and opining as to the Fair Market Value of each Aircraft that is or is to be a Financed Aircraft under the initial Loan;
(x) the fully-executed originals of the Eligible Lease relating to each Aircraft that is or is to be a Financed Aircraft under the initial Loan and the chattel paper originals thereof pursuant to Section 3.5 of Security Agreement;
(xi) a Lessee Estoppel Certificate or other evidence reasonably satisfactory to the Agent that any such Eligible Lease is valid and binding; and
(xii) a fully-executed copy of the Servicing Agreement certified by a Secretary or Assistant Secretary of the Initial Borrower, and certification of the amount of fees to be payable to UniCapital, CLA, Cauff Lippxxx xx any Affiliate in connection with such Servicing Agreement, which agreement and fees shall be acceptable to the Agent in its subsidiaries on a consolidated basis sole reasonable discretion;
(f) at the time of (and after giving effect to) the initial Loan, no Default or Event of Default specified in Article IX shall have occurred and be continuing; and
(g) immediately after giving effect to the Transactions to occur on the Closing Date, are solvent;
(vii) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of Section 3.3 and clause (o) of this Section 3.2; and
(viii) evidence that all Required Insurance has been obtained and is in effect;
(b) Administrative Agent and Lenders shall have received payment in full of all fees required to be paid under Section 2.9 on or before the Closing Date;
(c) Administrative Agent shall have received on or before the Closing Date, lien searches (including UCC, tax and judgment Lien searches) demonstrating the absence of Liens on the Collateral of Borrower and the other Credit Parties other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent;
(e) Administrative Agent shall have received a completed Borrowing Base Certificate and a pro forma Compliance Certificate evidencing to Administrative Agent’s reasonable satisfaction that Borrower has Minimum Liquidity as of the Closing Date of $70,000,000;
(f) [reserved];
(g) [reserved];
(h) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of (i) Xxxxxxxx & Xxxxx LLP, legal counsel for Borrower and the other Credit Parties, and (ii) each local counsel for the Credit Parties listed on Schedule 3.2(h), in each case, in form and substance acceptable to Administrative Agent in its sole discretioninitial Loan;
(i) Borrower and the aggregate principal balance of all outstanding Revolving Loans for each other Lender shall not exceed such Lender's Revolving Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue ServiceCommitment;
(jii) Administrative Agent the Revolving Credit Outstandings shall have received a fully executed counterpart not exceed the lesser of the Term Loan/ABL Intercreditor Agreement in form and substance reasonably satisfactory to Administrative Agent;
(k) [reserved];
(l) Administrative Agent shall have received (i) evidence of completion of a final collateral audit by Xxxxxxx, Young & Xxxxxxxxx, LLC and (ii) an accompanying audit report prepared by such firm, in each case satisfactory to Administrative Agent in its reasonable discretion;
(m) An order, which, for the avoidance of doubt, may be the Confirmation Order (as defined herein), authorizing Borrower’s entry into and performance under this Agreement and the other Loan Documents and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders shall have been entered by the Bankruptcy Court (the “Approval Order”);
(n) The order confirming the Approved Plan with respect to the Debtors (Docket No. 556) (the “Confirmation Order”) shall have been entered by the Bankruptcy Court. Each of the Approval Order and the Confirmation Order shall be in full force and effect and not have been stayed, reversed, or vacated, amended, supplemented, or modified except that such applicable order may be further amended, supplemented or otherwise modified in accordance with the RSA and shall not be subject to any pending appeals, except for any of the following, which shall be permissible appeals the pendency of which shall not prevent the occurrence of the Closing Date: (i) any appeal relating to the distributions (Borrowing Base or the allocation of such distributions) between and among creditors under the Approved Plan, or (ii) any other appeal, the result of which would not have a materially adverse effect on the rights and interests of the Lenders (taken as a whole and in their capacities as such). The Confirmation Order shall authorize the Total Revolving Credit Parties to execute, deliver and perform all of their obligations under all documents contemplated hereunder and thereunder and shall contain no term or provision that contradicts such authorization or the Approval Order. The Approved Plan shall have become effective in accordance with its terms and all conditions to the effectiveness of the Approved Plan shall have been satisfied or waived in accordance with the terms thereof, and all transactions contemplated in the Approved Plan, the Approval Order or the Confirmation Order to occur on the effective date of the Approved Plan shall have been (or concurrently with the Closing Date, shall be) substantially consummated in accordance with the terms thereof and in compliance with applicableCommitment; and
(oiii) Since December 31, 2019, no event, change Concentration Restriction shall be exceeded or condition has occurred that has had, or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effectotherwise violated.
Appears in 1 contract
Samples: Credit Agreement (Unicapital Corp)
