Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent: (i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010; (ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000; (iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business; (iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral; (v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1; (vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee; (vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW; (viii) All material consents required to effectuate the transactions contemplated hereby; (ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released; (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made; (xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and (xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 3 contracts
Sources: Revolving Credit Facility (Retail Ventures Inc), Revolving Credit Facility (DSW Inc.), Revolving Credit Facility (DSW Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and the Lead Arrangers:
(i) A a certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all the representations and warranties of the Loan Parties set forth Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects (or in all respects if such representation or warranty is qualified by Material Adverse Change or other materiality qualifier) on and as of the Closing Date, Date (except to the extent that any such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar importexpressly relate to an earlier date, in which case they are such representations and warranties shall be true and correct in all respects, material respects (wor in all respects if such representations or warranties are qualified by Material Adverse Change or other materiality qualifier) the Loan Parties are in compliance with each as of the covenants and conditions hereundersuch earlier date), (x) no Potential Default or Event of Default or Potential Default exists, and (y) no there has not occurred any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to cause a Material Adverse Change has occurred since January 30February 2, 20102025 and (z) the conditions stated in this Section 7.1 and Section 7.2 [Each Loan or Letter of Credit] (with respect to Section 7.2 [Each Loan or Letter of Credit], only if Loans or Letters of Credit will be issued on the Closing Date) have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary an Authorized Officer or an Assistant Secretary Authorized Officers (as applicable) of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with the Borrower to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state governmental official where such documents are filed in a state governmental office together with certificates from the appropriate state governmental officials as to due organization and the continued valid existence and good standing in the jurisdiction of each Loan Party in each state where organized or qualified to do business;its organization.
(iviii) This this Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer the parties thereto;
(iv) written opinion of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentscounsel for the Borrower, instruments and agreements evidencing dated the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;Closing Date; and
(v) A written opinion of if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), the Administrative Agent and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPLender shall have received, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory acceptable to the Administrative Agent and its counsel naming each Lender, an executed Certificate of Beneficial Ownership at least five (5) Business Days prior to the Administrative Agent Closing Date (to the extent requested at least seven (7) days (or such shorter period as additional insured and lender loss payee;
(viithe Borrower may agree) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request).
Appears in 2 contracts
Sources: Credit Agreement (Pure Storage, Inc.), Credit Agreement (Pure Storage, Inc.)
Deliveries. On At the Closing DateClosing:
(a) Sellers will deliver, or cause to be delivered, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentBuyer:
(i) A the Assignment of Membership Interests, duly executed by Dominion Questar;
(ii) certificates evidencing the certificated Interests, if such Interests are certificated, each accompanied by a Stock Power duly executed by the applicable Seller;
(iii) an officer’s certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except certifying that, to the best of such officer’s knowledge, the conditions set forth in Sections 6.2 and 6.3 have been satisfied;
(iv) the resignations of all directors and officers of the Sale Entities and JV Companies that are not Transferred Employees (and with respect to the JV Companies, solely to the extent such representations directors and warranties are modified officers were appointed by “materiality” Sellers or “Material Adverse Change” or words any of similar import, in which case they are true and correct in all respects, their Affiliates);
(wv) the Loan Parties are in compliance with each Transition Services Agreement, duly executed by Sellers; and
(vi) the Cove Point Letter Agreement, duly executed by DEI.
(b) Buyer will deliver, or cause to be delivered, the following to Sellers:
(i) the Base Purchase Price required by Section 2.1(b) of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010this Agreement;
(ii) A Simplified Borrowing Base Certificate prepared as the Assignment of the Closing Date in substantially the form of Exhibit 7.3.4.1Membership Interests, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000duly executed by Buyer;
(iii) A an officer’s certificate dated as of the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesDate, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as that, to the continued existence best of such officer’s knowledge, the conditions set forth in Sections 7.2 and good standing of each Loan Party in each state where organized or qualified to do business7.3 have been satisfied;
(iv) This Agreement and each reasonable evidence of the other Loan Documents signed by an Authorized Officer replacement, termination and release or provision of back-to-back guarantees for all Support Obligations, in each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentscase, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralaccordance with Section 5.8(c);
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPthe Transition Services Agreement, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1duly executed by Buyer;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effectthe Cove Point Letter Agreement, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;duly executed by Buyer; and
(vii) A the duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestBack-to-Back Guarantees.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Berkshire Hathaway Energy Co), Purchase and Sale Agreement (Dominion Energy, Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing including a pledge of all Collateral Documents as may be necessary to reflect valid of the equity in Hourglass Sands and perfected first priority Liens in the Collateral;High Point.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;7.1.1.
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral.
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material consents consents, approvals and licenses required to effectuate the transactions contemplated hereby;.
(vii) All lessor consents allowing for, among other things, a Lien to be obtained upon any lease of the Borrower of the Real Property, from the lessors of such lease, as required by the Administrative Agent, in its sole discretion, to have such consents, which such consents shall be in form and substance acceptable to the Administrative Agent (the “Lessor Consents”).
(viii) To permit the refinancing by the Lenders of the loans outstanding under the 2014 Credit Agreement, (1) the Borrower shall request Loans in an amount sufficient to refinance the loans under the 2014 Credit Agreement by delivering to the Administrative Agent an appropriately completed irrevocable Loan Request not later than 11:00 a.m., on the first Borrowing Date (which shall be the Closing Date) pursuant to which Loans (to which the Base Rate Option applies) are requested; and (2) contemporaneously with the execution and effectiveness of this Agreement and utilizing a portion of the proceeds of the Loans, the Borrower shall pay in full all amounts outstanding under the 2014 Credit Agreement, including all unpaid principal, interest, breakage fees and all other fees and charges thereunder in order to accomplish the amendment and restatement thereof as of the Closing Date. Each Lender that was a bank under the 2014 Credit Agreement, by execution of this Agreement, waives all notice of prepayment of loans and all notice of termination of the commitments under the 2014 Credit Agreement, and consents to such termination and prepayment. In the event that the Borrower submits a Loan Request hereunder, then the Borrower agrees to indemnify the Lenders for any and all liabilities, losses, or expenses arising therefrom in accordance with the standards set forth in Section 5.10 [Indemnity], regardless of whether this Agreement has become effective.
(ix) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;with acceptable results.
(x) Results of searches Evidence that after giving effect to the transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity (or other evidence reasonably security available for the issuance of permits, including without limitation, letters of credit) to conduct its operations as contemplated in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent.
(xi) Evidence that all of Required Mining Permits with respect to the Loan Parties are in full force and effect in accordance with their terms.
(xii) Audited financial statements of Borrower for the fiscal year ended December 31, 2017, prepared in accordance with GAAP and consolidating schedules for the balance sheet, statement of income, retained earnings and cash flow of the Borrower certified (subject to normal year-end audit adjustments and without footnotes) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, all as more fully described in Section 8.3.2 [Annual Financial Statements].
(xiii) The projected pro-forma financial projections (including balance sheets and statements of operations and cash flows) of the Borrower for each fiscal year from 2018 through 2021, which shall be satisfactory to the Administrative Agent (including all assumptions).
(xiv) Completion of all necessary FEMA flood zone diligence requirements.
(xv) Satisfactory completion and receipt of all third-party due diligence items, including, but not limited to the Energy Ventures Market Study, each in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent.
(xvi) indicating the absence An Authorized Officer of Liens on the assets of the each Loan PartiesParty, except for Permitted Liens acting in their capacities as such officers, shall have delivered a certificate in form and Liens for which termination statements and releases reasonably substance satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory as to the capital adequacy and solvency of each Loan Party after giving effect to the transactions contemplated hereby.
(xvii) A review of the amount and nature of all tax, ERISA, employee retirement benefit, environmental and all other contingent liabilities to which the Loan Parties may be subject.
(xviii) The Administrative Agent for and each Lender shall have received, in form and substance acceptable to Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the delivery of such termination statements and releases have been made;USA Patriot Act.
(xixix) An executed Collateral Access Agreement or other lien waiver agreement from A duly completed Compliance Certificate dated as of the lessor, or other applicable Person for Closing Date pursuant to which Borrower certifies that it shall be in compliance on a Pro Forma Basis with the fulfillment center covenants contained in Section 8.2.15 [Minimum Debt Service Coverage Ratio] and Section 8.2.16 [Maximum Leverage Ratio] upon the main distribution center as required under closing and funding of the Security Agreement; andLoans hereunder.
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Hallador Energy Co), Credit Agreement (Hallador Energy Co)
Deliveries. On the Closing DateMerger Subsidiary, the Administrative Agent WTI or WTC, as appropriate, shall have received each of the following in form executed and substance reasonably satisfactory delivered to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & or the Principals:
a. Certified copies of resolutions of each of Merger Subsidiary's, WTI's and WTC's board of directors authorizing the execution of this Agreement and each other Transaction Document to which Merger Subsidiary, WTI or WTC is a party and, in the case of WTC, the issuance of the shares of Common Stock in the Merger;
b. A copy of the charter and current bylaws of Merger Subsidiary, WTI and WTC, which, in the case of the charters and certificates, are certified as of a recent date by the Secretary of State of Delaware;
c. A certificate of the Secretary of each of Merger Subsidiary, WTI and WTC certifying that the resolutions, charters and bylaws in paragraphs (a) and (b) above are in full force and effect and have not been amended or modified, and that the officers of Merger Subsidiary, WTI and WTC are those persons named in the certificate;
d. A certificate issued by the Secretary of State of Delaware certifying that Merger Subsidiary, WTI and WTC are validly existing in Delaware as of the most recent practicable date;
e. True and correct copies of each other Transaction Document to which Merger Subsidiary, WTI or WTC is a party;
f. An opinion from counsel to Merger Subsidiary, WTI and WTC in the form of Exhibit 10.3(f);
g. A copy of the Form D to be filed with the SEC with respect to the issuance of the shares of Common Stock and of any similar filing or notification of filing that will be filed with any applicable state securities department;
h. WTI shall execute the BCT Agreement in favor of the Non-▇▇▇▇▇▇▇▇▇ LLPMembers; provided, counsel for however, that it shall not be a condition precedent to Closing that the Loan PartiesNon-▇▇▇▇▇▇▇▇▇ Members shall have executed such agreement; and
i. A copy of an appraisal of the fair market value of the Principals' Interest performed by Valuation Econometrics, each dated LLC, or another appraisal firm reasonably acceptable to WTC, as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended a date within 10 days prior to the Closing Date. In addition, signed by an Authorized Officer of DSW;
(viii) All material consents required WTC shall have delivered the merger consideration to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been be paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestat Closing.
Appears in 2 contracts
Sources: Merger Agreement (Wilmington Trust Corp), Merger Agreement (Wilmington Trust Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth Borrower is in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change Effect has occurred and no material litigation that has or could reasonably be expected to cause a Material Adverse Effect exists since January 30, 2010;the date of the last audited financial statements of the Borrower delivered to the Administrative Agent.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;Officer.
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;.
(v) [Intentionally Omitted].
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;.
(vii) A Lien search in acceptable scope and with acceptable results.
(viii) The Chief Executive Officer, President or Chief Financial Officer of the Borrower, acting in their capacities as such officers, shall have delivered a certificate in substantially the form attached hereto as Exhibit 6.1.1 to the Administrative Agent as to the capital adequacy and solvency of the Borrower after giving effect to the transactions contemplated hereby.
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Dayton Power & Light Co), Credit Agreement (Dayton Power & Light Co)
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each the Borrower signed by a Financial Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Delayed Draw Date stating that (va) all representations and warranties of the Loan Parties Borrower set forth in Article V of this Agreement are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Effect shall be true and correct in all respects, (w) the Loan Parties are in compliance with each as of the covenants and conditions hereunderDelayed Draw Date (or, if such representation or warranty makes reference to an earlier date, as of such earlier date), (xb) no Potential Default or Event of Default or Default exists, and (yc) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect all material consents of any outstanding letters of credit issued thereunder) Governmental Authority or third party necessary for the Acquisition shall have been obtained and payment of fees be in full force and expenses owing effect without condition or provision that would reasonably be expected to have a “Buyer Adverse Condition” (as defined in the Acquisition Agreement as on effect on the Closing Date), (d) no event or condition has occurred since December 16, 2013 that individually or in the aggregate has had, or is reasonably likely to have, a “Seller Material Adverse Effect” (as defined in the Acquisition Agreement in effect on the Closing Date), and (e) attached thereto is a true, correct and complete copy of at least $300,000,000the Acquisition Agreement, together with all schedules, exhibits, appendices, attachments and amendments thereto, as in effect on the Delayed Draw Date;
(ii) a duly executed Compliance Certificate dated the Delayed Draw Date and evidencing a Total Leverage Ratio of no greater than 3.95:1.00 on a proforma basis after giving effect to the Term Loans and the Acquisition;
(iii) A a certificate dated the Closing Delayed Draw Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, Borrower certifying as appropriate as to: that (a) all action information 41 certified to in the certificate delivered to the Administrative Agent and the Lenders on the Closing Date pursuant to Section 4.1(b)(ii) remains true and correct in all respects as of the Delayed Draw Date, or providing updates to any changes therein, (b) each of the Organizational Documents attached thereto has not been modified since the Closing Date and remains in full force and effect or providing updates to any changes therein and (c) all corporate actions taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) Documents remain in full force and effect and authorize the names transactions contemplated as of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDelayed Draw Date;
(iv) This Agreement and each a duly completed, executed Loan Request for the Term Loans requested to be made on the Delayed Draw Date, including notice of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents election as may be necessary to reflect valid and perfected first priority Liens in the CollateralInterest Periods (if applicable);
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPa duly completed, counsel for the Loan Parties, each dated as executed Solvency Certificate signed by a Financial Officer of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Borrower;
(vi) Evidence evidence, in form and substance reasonably satisfactory to the Administrative Agent, that adequate insurance (A) the Acquisition has been or is being consummated on terms and conditions consistent with the Acquisition Agreement in the form attached to the certificate delivered to the Administrative Agent pursuant to Section 4.2(b)(i), in all material respects, substantially concurrently with the making of the Term Loans, other than any amendments, consents or waivers thereto that are not materially adverse to the Lenders (absent the prior consent of the Lenders, which consent shall not be unreasonably withheld or delayed; provided that an increase or reduction in the purchase price by 10% or less shall not be deemed materially adverse to the Lenders), and (B) all material governmental and third-party consents, subordinations or waivers, as applicable, required to be maintained under this Agreement is consummate the Acquisition have been obtained and are in full force and effect, with additional insured including any required material permits, authorizations or consents, of all applicable Governmental Authorities, including the FCC and lender loss payable endorsements attached thereto all applicable PUCs, in form and substance satisfactory each case without condition or provision that would reasonably be expected to have a “Buyer Adverse Condition” (as defined) in the Administrative Agent and its counsel naming Acquisition Agreement in effect on the Administrative Agent as additional insured and lender loss payeeClosing Date;
(vii) A duly completed Compliance Certificate as an executed letter from the Borrower with respect to any proceeds of the last day Term Loans being disbursed to third parties authorizing the Administrative Agent to distribute such proceeds on behalf of the fiscal quarter of DSW most recently ended prior to Borrower in accordance with the Closing Date, signed by an Authorized Officer of DSW;instructions set forth in such letter; and
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing any Term Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestNote requested by any Lender.
Appears in 2 contracts
Sources: Credit Agreement (Frontier Communications Corp), Credit Agreement (Frontier Communications Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or Secretary, an Assistant Secretary or other Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iii) Copies of the duly executed Senior Secured Notes with a principal amount of at least $150,000,000 and the associated Senior Secured Note Indenture;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralstatements;
(v) The Intercreditor Agreement duly executed by each party thereto;
(vi) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(vivii) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(vii) A duly completed Compliance Certificate as , and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the last day Administrative Agent, for the benefit of the fiscal quarter of DSW most recently ended Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to the Closing Datesuch property, signed by an Authorized Officer of DSWstructures and contents becoming Collateral;
(viii) Delivery of pro forma projections (including a pro forma closing balance sheet, pro forma statements of operations and cash flow) for the years 2012 through 2017, including assumptions used in preparing the forecast financial statements, satisfactory to the Administrative Agent;
(ix) All material consents required to effectuate the transactions contemplated hereby;
(ixx) Evidence that each existing financing arrangement with any of the Existing Loan Agreement has Parties as set forth on Schedule 7.1 have been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released or have been agreed to be promptly released;
(xxi) Results A Lien search in acceptable scope and with acceptable results;
(xii) The PNC Blocked Account Control Agreement signed by an Authorized Officer and all documentation requested by PNC relating to opening of searches or the Blocked Account thereto;
(xiii) The PNC Sweep Account Control Agreement signed by an Authorized Officer and all documentation requested by PNC relating to opening of the deposit account subject thereto;
(xiv) Any other Deposit Account Control Agreement signed by an Authorized Officer, and each Depository and evidence reasonably of the deposit account subject thereto;
(xv) A duly completed Borrowing Base Certificate as of the Closing Date, signed by an Authorized Officer of Borrower and demonstrating Undrawn Availability of at least $20,000,000;
(xvi) A duly completed (a) Schedule of Accounts, (b) Schedule of Inventory, and (c) Schedule of Payables;
(xvii) A review of the amount and nature of all tax, employee retirement benefit, labor contracts and relations, environmental and all other contingent liabilities (including any litigation) to which the Loan Parties may be subject;
(xviii) Evidence that the Borrower has sufficient mine bonding capacity to conduct their operations as projected in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent;
(xix) The Authorized Officer of each Loan Party, acting in their capacities as such officers, shall have delivered a certificate in form and substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence solvency of Liens on the assets of the each Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Party after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementtransactions contemplated hereby; and
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Armstrong Coal Company, Inc.), Credit Agreement (Armstrong Energy, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited consolidated financial statements of the Borrower delivered to the Administrative Agent except as set forth on Schedule 6.1.6;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(viii) A Lien search in acceptable scope and with acceptable results;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder deposit accounts have been paid and all Liens securing such obligations have been released;opened at PNC for the purpose of paying the Obligations; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Steel Partners Holdings L.P.), Term Loan Facility (Handy & Harman Ltd.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Certified copies of each Loan Party the FERC Order and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;IURC Order.
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1(a);
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWOfficer;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Credit Agreement dated as of May 16, 2006, as amended (the "Existing Loan Agreement Credit Agreement"), among the Borrower, Bank of America, N.A. (as successor to La Salle Bank National Association) as administrative agent, and the banks party thereto, has been terminated, and all outstanding obligations thereunder have been shall be paid and all Liens securing such obligations have been releasedwith the proceeds of the first Loans;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;acceptable results; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ipalco Enterprises, Inc.), Credit Agreement (Ipalco Enterprises, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects, except for representations and warranties which (A) specifically refer to an earlier date which shall have been true and correct in all material respects as of the Closing Datesuch earlier date referred to therein, except to the extent such representations and warranties (B) are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in materiality which case they are will be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, (y) the Loan Parties are in compliance with ERISA and applicable labor laws, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party the parties thereto and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date in form and opining as substance acceptable to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing DateDate for which financial statements have been delivered under the Existing Credit Agreement, signed by an Authorized Officer of DSWBorrower, evidencing pro forma compliance with the financial covenants as of the Closing Date (after giving effect to the transactions occurring on the Closing Date and the consummation of the Project Vitality Acquisition);
(viiivii) All material consents consents, regulatory approvals and licenses required to effectuate the transactions contemplated hereby;
(viii) Absence of any legal or regulatory prohibitions or restrictions in connection with the transactions contemplated hereby;
(ix) Evidence that Absence of any Material Adverse Change from the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedinformation previously delivered to the Administrative Agent in connection with the transactions contemplated hereby;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for each leased Collateral location requested by the fulfillment center and the main distribution center as required under the Security Agreement; andAdministrative Agent;
(xii) Receipt of the Loan Parties’ most recent audited financial statements, prepared in accordance with GAAP;
(xiii) Evidence that any existing credit agreements, and the obligations thereunder have been paid in full and, if applicable, all liens and security interests related thereto shall have been released;
(xiv) Receipt of documentation and other information as requested by the Administrative Agent or any Lender in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act;
(xv) Within three (3) Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Beneficial Ownership Certification and such other documentation and other information requested in connection with applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(xvi) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Helios Technologies, Inc.), Credit Agreement (Helios Technologies, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence ;
(iv) A written opinion of filing of all Collateral Documents as may be necessary counsel for the Loan Parties acceptable to reflect valid and perfected first priority Liens Administrative Agent in the Collateralits reasonable discretion;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xiix) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement; and
(xiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Crocs, Inc.), Credit Agreement (Crocs, Inc.)
Deliveries. On the Closing DateDate (except as expressly set forth below), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change has occurred since January 30, 2010;the date of the last audited financial statements of the Borrower delivered to the Administrative Agent.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (or a certification that there have been no changes to the organizational documents since last delivered to the Administrative Agent), together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral; provided that the Loan Parties agree to take all action to perfect, and evidence at the Loan Parties’ cost, the Administrative Agent’s lien in sixty five percent (65%) of filing the equity in first tier Foreign Subsidiaries pursuant to the Pledge Agreement within ninety (90) days after the Closing Date or such longer period of all Collateral Documents as may be necessary time agreed to reflect valid and perfected first priority Liens in by the Collateral;Administrative Agent.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;6.1(a).
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;.
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrower;
(viiivii) All Copies of all material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory with results acceptable to the Administrative Agent (showing the Liens in each case dated as favor of a date reasonably satisfactory to the Administrative Agent) indicating Agent to be a Prior Security Interest, provided that the absence Loan Parties agree to provide the Administrative Agent with a Lien search of Liens on the assets real properties owned by any of the Loan PartiesParties or their Subsidiaries within ninety (90) days of the Closing Date, showing no Liens against any such real estate except for Permitted Liens Liens;
(ix) Use commercially reasonable efforts to obtain an executed landlord’s waiver in form and Liens for which termination statements and releases reasonably satisfactory substance acceptable to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person lessor for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement; and
(xiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Gsi Commerce Inc), Credit Agreement (Gsi Commerce Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and each of which (unless otherwise specified) shall be original copies or telecopies promptly followed by original copies:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (yw) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrower delivered to the Administrative Agent, 2010(x) the conditions stated in both Section 7.1 and 7.2 have been satisfied, (y) there has been no material adverse change from any certificate, report, statement, agreement or other document or other written information previously supplied to the Administrative Agent and the Arrangers furnished by or on behalf of the Borrower in connection with the transactions contemplated by this Agreement or the other Loan Documents and (z) all material consents, licenses and approvals required for the delivery and performance by the Borrower of any Loan Document and the enforceability of any Loan Document against the Borrower is in full force and effect and none other is so required or necessary; provided that any increase of the Commitments in accordance with Section 2.11 [Increase in Revolving Credit Commitments] or the extension of any Expiration Date in accordance with Section 2.12 [Extension of Expiration Date] may require appropriate governmental or third party authorization thereof prior to the effectiveness of such increase or such extension, as the case may be;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with the Borrower to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (b) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified as of a sufficiently recent date prior to the Closing Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party the Borrower in the state of its organization and in each state where organized conduct of business or ownership or lease of properties or assets requires such qualification, except to the extent that the failure to be so qualified could not reasonably be expected to do businessresult in a Material Adverse Change;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer in a sufficient number of counterparts for delivery to each Loan Party Lender and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralAdministrative Agent;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as addressed to the matters set forth Administrative Agent and each Lender and in Schedule 6.1.1form and substance satisfactory to the Administrative Agent;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements endorsement attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent and the Secured Parties as additional insured and lender loss payeeinsureds;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date calculating the Funded Indebtedness to Total Adjusted Capitalization Ratio and the Total Indebtedness to Total Capitalization Ratio on a pro form basis after giving effect to the transactions contemplated hereby and the initial Loans borrowed on the Closing Date, signed by an Authorized Officer of DSWBorrower;
(vii) A Lien search in acceptable scope and with acceptable results;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that all Indebtedness (other than such Indebtedness permitted under Section 9.1) of the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Borrower shall have been paid in full and the commitments thereunder terminated and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations Indebtedness (other than such Liens permitted under Section 9.2) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement); and
(xiiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Chesapeake Utilities Corp), Credit Agreement (Chesapeake Utilities Corp)
Deliveries. On The Purchasers must have received the following:
(a) certificates representing the Purchased Securities (to the extent any Purchased Securities are certificated) duly endorsed in blank for transfer, or accompanied by irrevocable security transfer powers of attorney duly executed in blank, in either case, by the holders of record, together with evidence satisfactory to the Purchasers that the applicable Purchaser has been entered upon the books of the Target Companies as the holder of the Purchased Securities;
(b) the certificates referred to in Section 6.1(1) and Section 6.1(2);
(c) the duly executed Resignations, in form and substance reasonably acceptable to Purchasers;
(d) a “good standing” certificate (or equivalent) for each of the Target Companies (to the extent such concept is applicable to said entity) and a copy of the articles of incorporation and all amendments thereto (or comparable document) of each of the Target Companies, in each case certified by the relevant officer of the jurisdiction of organization of such Person, each dated as of a date within five Business Days before the Closing Date, the Administrative Agent shall have received ;
(e) a certificate from each of Shred-it and Shred-it US Holdco Inc. prepared in accordance with the following applicable regulations under Treasury Regulations under Section 1445 and Section 897, in form and substance reasonably satisfactory to the Administrative Agent:Purchasers, duly executed and acknowledged, certifying any facts that would exempt the transactions contemplated hereby from withholding under Section 1445 of the Code;
(f) the Agreement Regarding Shared Contracts and Consent Contracts (in the form attached hereto as Exhibit G), duly executed by each of Shred-it, Cintas Corporation No. 2, a corporation incorporated under the Laws of the State of Nevada, and Cintas Parent;
(g) the Indemnity Escrow Agreement, duly executed by Vendors’ Representative;
(h) evidence that all the outstanding stock options issued by Boost GP have been duly exercised by the Option Participants; and
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Boost GP Note and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestBoost Holdings Note.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cintas Corp), Securities Purchase Agreement (Stericycle Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xA) no Potential Default or Event of Default or Potential Default exists, and (yB) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the date of the Closing Date in substantially last audited financial statements of the form Borrower delivered to the Administrative Agent (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) all material consents, licenses and approvals, if any, required for the delivery and performance by any Loan Party of Exhibit 7.3.4.1any Loan Document and the enforceability of any Loan Document against such Loan Party have been obtained, showing (D) the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case Loan Parties taken as a whole after giving effect to the Loans Transactions scheduled to be made occur on the Closing Date are Solvent, (E) the representations and consummation of warranties set forth herein are true and correct, and (F) the transactions contemplated hereby conditions stated in this Section 7.1 (including repayment of Indebtedness under assuming the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunderAdministrative Agent’s and/or the Lenders’ satisfaction with such conditions precedent that require the Administrative Agent’s and/or the Lenders’ satisfaction) and payment Section 7.2 [Each Loan or Letter of fees Credit] have been satisfied, in each case other than those waived by the Administrative Agent and expenses owing on the Closing Date), of at least $300,000,000Lenders in writing;
(iiiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all attaching copies of such resolution or other corporate or organizational action duly taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan Documents; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with office; and (D) certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in each the state where organized or qualified to do businessof its organization;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralparties thereto;
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent;
(v) indicating the absence of Liens on the assets of the Loan PartiesEvidence, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently Agent, that all Indebtedness not permitted under Section 9.1 [Indebtedness] shall have been paid in full or will be paid in full after giving effect to the use of proceeds from the Loans made on the Closing Date and that all necessary termination statements, release statements and other releases in connection with all Liens (other than Liens permitted under Section 9.2) have been filed or satisfactory arrangements have been made for such extension of credit or other arrangements filing (including payoff letters, if applicable, in form and substance reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeAgent);
(xivi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; andThe Statements;
(xiivii) Certificate of Beneficial Ownership; USA PATRIOT Act Diligence. The Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(viii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Stewart Information Services Corp), Credit Agreement (Stewart Information Services Corp)
Deliveries. On the Closing DateA. In connection with UMBFS’ appointment as sub-transfer agent and dividend disbursing agent, the Administrative Agent SEI shall have received each of deliver or cause the following in form and substance reasonably satisfactory documents to the Administrative Agentbe delivered to UMBFS:
(i1) A copy of the Declaration of Trust and By-laws of the Trust and all amendments thereto, certified by the Secretary of the Trust;
(2) A certificate of each signed by the President and Secretary of the Loan Parties Trust specifying the number of authorized Shares and the number of such authorized Shares issued and currently outstanding, if any, the validity of the authorized and outstanding Shares, whether such shares are fully paid and non-assessable, and the status of the Shares under the Securities Act and any other applicable federal law or regulation;
(3) A certified copy of the resolutions of the Board of Trustees of the Trust appointing SEI as transfer agent and dividend disbursing agent;
(4) Copies of the Trust’s Registration Statement, as amended to date, and the most recently filed Post-Effective Amendment to the Trust’s Registration Statement, filed by the Trust with the Securities and Exchange Commission (the “SEC”) under the Securities Act and the 1940 Act, together with any applications filed in connection therewith;
(5) The certificate required by Section 8.01 of this Agreement, signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties officer of the Loan Parties set forth in this Agreement are true Trust and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) designating the names of the Trust’s initial Authorized Officers authorized to sign the Loan Documents and their true signaturesPersons; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;and
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v6) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated certificate as of a date reasonably satisfactory agreed upon by the parties to the Administrative Agent) indicating the absence of Liens on the assets this Sub-TA Agreement certifying that all accounts have been reconciled through such date.
B. SEI agrees to deliver or to cause to be delivered to UMBFS in Milwaukee, Wisconsin, at SEI’s expense, all of the Loan PartiesTrust’s Shareholder account records in a format acceptable to UMBFS, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such well as all other documents, instruments records and agreements in connection with such transactions as the Administrative Agent or its counsel information that UMBFS may reasonably requestrequest in order for UMBFS to perform the Services hereunder.
Appears in 2 contracts
Sources: Sub Transfer Agency Agreement (Community Reinvestment Act Qualified Investment Fund), Sub Transfer Agency Agreement (Community Reinvestment Act Qualified Investment Fund)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Certified copies of each Loan Party the FERC Order and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralIURC Order;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1(a);
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, such documentation and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements information requested in connection with such transactions as applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative Agent or its counsel may reasonably request.USA Patriot Act; and
Appears in 2 contracts
Sources: Term Loan Agreement (Ipalco Enterprises, Inc.), Term Loan Agreement (Ipalco Enterprises, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrowers signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Company delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrowers, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeAgent;
(viiv) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Company most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Company;
(viiivi) All material consents required to effectuate the transactions contemplated hereby;
(ixvii) Evidence that the Existing Loan Credit Agreement dated as of July 2, 2007, among the Borrowers, the lenders party thereto and Huntington National Bank, as amended, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementpaid; and
(xiiviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Cincinnati Financial Corp), Credit Agreement (Cincinnati Financial Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the their representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viivi) A duly completed Compliance Certificate closing date compliance certificate, in form and substance satisfactory to the Administrative Agent, dated as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrowers;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Credit Agreement has been terminatedterminated or will be terminated concurrently with the execution of the Credit Agreement, and all outstanding obligations and commitments thereunder have been paid and all Liens securing such obligations have been released;
(xix) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementacceptable results; and
(xiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Revolving Credit Facility (Finish Line Inc /In/), Credit Agreement (Finish Line Inc /In/)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default or Potential Default exists, and (yD) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent; and (E) there are no actions, 2010;suits, proceedings or investigations pending or, to the knowledge of any Loan Party, threatened against such Loan Party at law or in equity before any Official Body which individually or in the aggregate constitute a Material Adverse Change.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified and in each other state in which the failure to do businessbe registered and in good standing would constitute a Material Adverse Change;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing DateBorrowers ending June 30, 2017, signed by an Authorized Officer of DSWBorrowers;
(vii) All consents and regulatory approvals and licenses necessary to effectuate the transactions contemplated hereby shall have been completed and there shall be an absence of any legal or regulatory prohibitions or restrictions;
(viii) All material consents required Evidence that the indebtedness and obligations under the Existing Credit Agreement have been amended and restated and shall from and after the Closing Date be evidenced by this Agreement and the other Loan Documents and all Liens and security interests related to effectuate the transactions contemplated herebyExisting Credit Agreement have been released or terminated;
(ix) Evidence that Pro forma projections for the Existing Loan Agreement has been terminatedfiscal years 2017 through 2022, all of which shall be in form and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedsubstance satisfactory to the Administrative Agent;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;acceptable results; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Johnson Outdoors Inc), Credit Agreement (Johnson Outdoors Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the their representations, warranties, covenants and conditions hereunder, (x) the absence of any material litigation, and no Potential Default or Event of Default existsor, to the best of its knowledge, Potential Default exists and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viivi) A duly completed Compliance Certificate closing date compliance certificate, in form and substance reasonably satisfactory to the Administrative Agent, dated as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrowers;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Credit Agreement has been terminatedterminated or will be terminated concurrently with the execution of this Agreement, and all outstanding obligations and commitments thereunder have been paid paid;
(ix) A Lien search in acceptable scope and all Liens securing such obligations have been released;with acceptable results; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Revolving Credit Facility (Finish Line Inc /In/), Revolving Credit Facility Credit Agreement (Finish Line Inc /In/)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance reasonably satisfactory and executed in such counterparts as shall be acceptable to Administrative Agent and Required Banks and each of which shall, unless otherwise indicated, be dated on or prior to the Administrative AgentEffective Date:
(i) A certificate a Note payable to the order of each Bank in the amount of such Bank’s Commitment, duly executed and delivered by Borrower;
(ii) a Borrower Pledge Agreement duly executed and delivered by Borrower together with (A) certificates evidencing one hundred percent (100%) of the Loan Parties signed issued and outstanding Equity of GeoMet Operating and each other existing Domestic Subsidiary, which certificates shall be duly endorsed or accompanied by stock powers executed in blank (as applicable), and (B) such financing statements as Administrative Agent shall request to evidence and perfect the Liens granted pursuant to such Borrower Pledge Agreement;
(iii) a Facility Guaranty duly executed and delivered by GeoMet Operating and each existing Domestic Subsidiary of Borrower;
(iv) the Amendments to Mortgages duly executed and delivered by Borrower and Administrative Agent, together with such other assignments, conveyances, amendments, agreements and other writings, including, without limitation, UCC-1 financing statements and UCC-3 assignments and amendments, in form and substance satisfactory to Administrative Agent;
(v) a certificate, dated as of the Effective Date, executed by an Authorized Officer of each BorrowerBorrower stating that, dated to his knowledge, (A) the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth contained in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they other Loan Papers are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xB) no Potential Default or Event of Default existshas occurred which is continuing, and (yC) no Material Adverse Change has occurred since January 30, 2010all conditions set forth in this Section 6.1 and Section 6.2 have been satisfied;
(iivi) A Simplified Borrowing Base Certificate prepared a copy of the articles or certificate of incorporation or comparable charter documents, and all amendments thereto, of each Credit Party that is a party to any Loan Paper, accompanied by a certificate that such copy is true, correct and complete, issued by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of each such Credit Party, and accompanied by a certificate of the Secretary, Assistant Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete as of the Closing Date in substantially date hereof;
(vii) a copy of the form bylaws or comparable charter documents, and all amendments thereto, of Exhibit 7.3.4.1each Credit Party that is a party to any Loan Paper, showing accompanied by a certificate of the sum Secretary, Assistant Secretary or comparable Authorized Officer of Revolving each such Credit Availability plus Party that such copy is true, correct and complete as of the Borrowers’ cash date hereof;
(viii) certain certificates and cash equivalents then on hand, in each case after giving effect other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the Loans existence of each Credit Party that is a party to any Loan Paper and to the effect that each Credit Party is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(ix) a certificate of incumbency of the officers of each Credit Party (to the extent a party to any Loan Paper) who will be made on authorized to execute or attest to any Loan Paper, dated the Closing Date date hereof, executed by the Secretary, Assistant Secretary or comparable Authorized Officer of each such Credit Party (as applicable); and
(x) copies of resolutions or comparable authorizations approving the Loan Papers and consummation of authorizing the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) Papers, duly adopted by the names Board of Directors, partners or comparable authority of each Credit Party a party to any Loan Paper, accompanied by certificates of the Authorized Officers authorized to sign the Loan Documents Secretary, Assistant Secretary or comparable officer of each such Credit Party (as applicable) that such copies are true and their true signatures; and (c) correct copies of its organizational resolutions duly adopted in accordance with the charter documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateralsuch Credit Party, and evidence of filing of that such resolutions constitute all Collateral Documents as may be necessary the resolutions adopted with respect to reflect valid such transactions, have not been amended, modified, or revoked in any respect, and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is are in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate effect as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requesthereof.
Appears in 2 contracts
Sources: Credit Agreement (GeoMet, Inc.), Credit Agreement (GeoMet, Inc.)
Deliveries. On the Closing Effective Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Effective Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import(or, in which the case they are true and correct of any such representation or warranty already qualified by materiality, in all respects), (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Effective Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Effective Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents (including originals of each Note requested by any Lender) signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence ;
(iv) A written opinion of filing of all Collateral Documents as may be necessary counsel for the Loan Parties acceptable to reflect valid and perfected first priority Liens Administrative Agent in the Collateralits reasonable discretion;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Effective Date, signed by an Authorized Officer of DSW▇▇▇▇▇▇▇▇;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(viii) A Lien search in acceptable scope and with acceptable results;
(ix) Evidence that All documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;USA Patriot Act; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 10.3 [Exculpatory Provisions], for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Crocs, Inc.), Credit Agreement (Crocs, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement the Loan Documents are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Change, in which case such representations and warranties shall be true in all respects) on and as of the Closing Date, such date (except to the extent any such representations and warranties are modified by “materiality” representation or “Material Adverse Change” or words of similar importwarranty expressly relates only to an earlier and/or specified date, in which case they are such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date), (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements in form for filing and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate setting forth pro forma compliance with the financial covenants as of the last day of the fiscal quarter of DSW Borrower most recently ended for which financial statements have been delivered prior to the Closing Date, signed by an Authorized the Chief Executive Officer, President, Chief Financial Officer or Chief Accounting Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated herebyhereby and all regulatory approvals and licenses necessary for the financing have been completed;
(viii) [Reserved];
(ix) Evidence that the Existing Loan Agreement has been terminated, A Lien search in reasonably acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A duly completed perfection certificate in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from No material adverse change to information previously supplied to the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementAdministrative Agent;
(xii) [Reserved]
(xiii) [Reserved]; and
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement and Security Agreement (Paylocity Holding Corp), Credit Agreement (Paylocity Holding Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A With respect to each Loan Party, a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default or Potential Default exists, and (yd) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent, 2010and (e) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Subsidiaries which could reasonably be expected to result in a Material Adverse Change;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1With respect to each Loan Party, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state or foreign jurisdiction official where such documents are filed in a the appropriate state or foreign jurisdiction office together with certificates from the appropriate state or foreign jurisdiction officials as to the continued existence and good standing (or foreign jurisdiction equivalent, if any) of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate and, to the extent not previously delivered to the Administrative Agent, stock powers and or other certificates and other documents, instruments and agreements evidencing the pledged CollateralCollateral and appropriate transfer powers;
(iv) Written opinions of counsel for each Loan Party, dated the Closing Date, each in form and evidence of filing of all Collateral Documents as may be necessary substance acceptable to reflect valid the Administrative Agent and perfected first priority Liens in the CollateralLenders;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, ;
(vi) Lien searches for each Loan Party in acceptable scope and with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeacceptable results;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(viii) [Reserved];
(ix) Evidence that A duly completed Compliance Certificate as of the Closing Date, signed by a Senior Officer of the Company;
(x) The Existing Loan Credit Agreement has shall have been terminated, amended and restated at closing and all outstanding obligations thereunder have been paid shall be deemed to be Obligations hereunder, and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory Obligations shall be allocated to each Lender on the Closing Date in accordance with such Lender's Ratable Share; and the Administrative Agent (in each case dated as of shall have paid all outstanding amounts owed to any lender under the Existing Credit Agreement who is not a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeLender under this Agreement;
(xi) An Satisfactory completion of third-party due diligence, including all environmental due diligence, initiated by the Borrowers as it relates to the transactions contemplated hereby;
(xii) The Administrative Agent and each Lender shall have received, in form and substance acceptable to Administrative Agent and each Lender an executed Collateral Access Agreement or Certificate of Beneficial Ownership for each Foreign Borrower and such other lien waiver agreement from documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the lessorUSA Patriot Act;
(xiii) Satisfactory review of the amount and nature of all tax, or ERISA, Canadian Pension Plans, Canadian Benefit Plans, employee retirement benefit and all other applicable Person for contingent liabilities to which the fulfillment center and the main distribution center as required under the Security AgreementLoan Parties may be subject; and
(xiixiv) Such other documents, instruments Receipt of such information and agreements in connection with such transactions documentation as may reasonably be requested by the Administrative Agent or its counsel may reasonably request.any Lender from time to time for purposes of compliance by the Administrative Agent and such Lender with applicable laws (including without limitation the USA Patriot Act or other “know your customer” and anti-money laundering rules and regulations and Anti-Terrorism Laws), and any policy or procedure implemented by the Administrative Agent or such Bank to comply therewith
Appears in 1 contract
Sources: Credit Agreement (Foster L B Co)
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized a Compliance Officer of each Borrowersuch Loan Party, dated the Closing Date stating that (vi) all representations and warranties of the Loan Parties set forth in this Agreement (including without limitation the representation as to solvency of the Loan Parties set forth in Section 5.18 and the representation as to litigation set forth in Section 5.9), are true and correct in all material respects as of the Closing Date, except to the extent such date (unless such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar importrelate to another specific date, in which case event they are true and correct in all respectsmaterial respects as of such other specific date), (wii) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xiii) no Potential Event of Default or Event of Default exists, and (yiv) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Parent delivered to the Administrative Agent; provided that the impacts of COVID-19 on the business, 2010assets, operations, financial condition or prospects of such Loan Party that (x) have been disclosed in writing to the Lead Arranger and the Lenders prior to the Closing Date; (y) were discussed on the conference call between the Lead Arranger, the Lenders and the Borrower on May 8, 2020; or (z) have been otherwise publicly disclosed in filings with the SEC prior to the Closing Date, will be disregarded, in each case to the extent so disclosed or discussed;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (ai) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (bii) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (ciii) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do businessand in which it maintains its chief executive office;
(iviii) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local counsel, if applicable), dated as of the Closing Date and opining as in form and substance reasonably acceptable to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vi) [reserved];
(vii) A a duly completed Compliance Certificate completed, executed Loan Request, including notice of election as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWInterest Periods (if applicable);
(viii) All evidence that the Borrower has made a minimum equity investment in each Farm Credit Lender as required under Section 6.9;
(ix) all material governmental and third-party consents required to effectuate the transactions contemplated hereby;
(ixx) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released[reserved];
(xxi) Results of searches or a Lien search with respect to the Borrower and each other evidence reasonably Loan Party, in scope satisfactory to the Administrative Agent (in each case dated as of a date reasonably and with results showing no Liens other than Permitted Liens and otherwise satisfactory to the Administrative Agent;
(xii) indicating the absence of Liens on the assets an executed direction to pay proceeds letter with respect to any proceeds of the Revolving Loans being disbursed to third parties;
(xiii) such financial statements, budgets, forecasts and other financial information as to the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to Parties as the Administrative Agent are being tendered concurrently with such extension of credit or any other arrangements Lender may have reasonably satisfactory required prior to the Closing Date;
(xiv) at least five (5) Business Days prior to the Closing Date, all documentation and other information requested by (or on behalf of) the Administrative Agent for or any Lender in order to comply with requirements of applicable Anti-Terrorism Laws or Anti-Corruption Laws, including, without limitation, the delivery of such termination statements USA PATRIOT Act and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from a Beneficial Ownership Certification in relation to the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementBorrower; and
(xiixv) Such such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Seaboard Corp /De/)
Deliveries. On At the Closing DateFacility Increase Closing, the Administrative Agent shall have received Company will deliver to each Investor (i) duly executed Facility Increase Warrants in accordance with Section 2.2, (ii) a written opinion of King & Spalding, LLP, counsel to the following Company, in form and substance reasonably satisfactory acceptable to the Administrative Agent:
Investors, (iiii) A a certificate of each the Secretary or an Assistant Secretary of the Loan Parties signed by an Authorized Officer of each BorrowerCompany, dated the Initial Closing Date stating and certifying: (1) that attached thereto is a true and complete copy of the Bylaws as in effect on the date of such certification; (2) that attached thereto is a true and complete copy of the Certificate of Incorporation as in effect on the date of such certification; (3) that attached thereto is a certificate of the Secretary of State dated as of a recent date as to the due incorporation and good standing of the Company and listing all documents of the Company on file with the Secretary of State; and (4) that attached thereto is a true and complete copy of resolutions adopted by the Board authorizing the execution, delivery and performance of the Transaction Agreements, the issuance, sale, and delivery of the Facility Increase Warrants, and that all such resolutions are still in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement, and (iv) a certificate of a duly authorized officer, dated the Facility Increase Closing Date, to the effect that (v1) all the representations and warranties of the Loan Parties set forth Company contained in this Agreement Article III are true and correct in all material respects at and as of the Facility Increase Closing DateDate as if made at and as of the Facility Increase Closing Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date); provided that, except if a representation or warranty is qualified as to the extent such representations and warranties are modified by “materiality” materiality or “Material Adverse Change” Effect, for purposes of this clause (iv), such representation or words of similar import, in which case they are warranty shall be true and correct in all respects), and (w2) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xin Section 6.2(c) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestsatisfied.
Appears in 1 contract
Sources: Warrant Purchase Agreement (F45 Training Holdings Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A With respect to each Loan Party, and subject to the Due Authorization Limitation Provision, IOS and each IOS Guarantor, a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default or Potential Default exists, and (yd) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent, 2010and (e) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Subsidiaries which could reasonably be expected to result in a Material Adverse Change;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1With respect to each Loan Party, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect subject to the Loans to be made on the Closing Date Due Authorization Limitation Provision, IOS and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date)each IOS Guarantor, of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state or foreign jurisdiction official where such documents are filed in a the appropriate state or foreign jurisdiction office together with certificates from the appropriate state or foreign jurisdiction officials as to the continued existence and good standing (or foreign jurisdiction equivalent, if any) of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Written opinions of counsel for each Loan Party Party, IOS and all appropriate financing statements each IOS Guarantor, dated the Closing Date, each in form and appropriate stock powers substance acceptable to the Administrative Agent and certificates the Lenders; provided that the delivery of the opinions to be delivered with respect to IOS and other documents, instruments and agreements evidencing each IOS Guarantor shall be subject to the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDue Authorization Limitation Provision;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, ;
(vi) A Lien search in acceptable scope and with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeacceptable results;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated herebyhereby and by the Acquisition Documents;
(viii) The following shall be accurate in all material respects (or, if qualified by materiality, in all respects) with respect to IOS and each IOS Guarantor (a) the Specified Merger Agreement Representations and (b) the Specified Representations;
(ix) Evidence that Projected consolidated financial statements of the Existing Loan Agreement has been terminatedCompany and its Subsidiaries consisting of consolidated balance sheets, statements of operations and cash flows, from the fiscal year ending December 31, 2015 through the fiscal year ending December 31, 2019, all outstanding obligations thereunder have been paid of which shall be in form and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date substance reasonably satisfactory to the Administrative Agent;
(x) indicating the absence of Liens on the assets A duly completed Compliance Certificate as of the Loan PartiesClosing Date, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to signed by a Senior Officer of the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeCompany;
(xi) An executed Collateral Access Evidence that the Existing Credit Agreement or other lien waiver agreement from shall have been amended and restated and all outstanding obligations thereunder shall be deemed to be Obligations hereunder, and such Obligations shall be allocated to each Lender on the lessor, or other applicable Person for the fulfillment center Closing Date in accordance with such Lender’s Ratable Share; and the main distribution center as required Administrative Agent shall have paid all outstanding amounts owed to any lender under the Security Existing Credit Agreement who is not a Lender under this Agreement;
(xii) Satisfactory completion of third-party due diligence, including all environmental due diligence, initiated by the Borrowers as it relates to the transactions contemplated hereby;
(xiii) Receipt of a certified copy of the duly executed Merger Agreement and any related acquisition or merger documents (together with the Merger Agreement, the “Acquisition Documents”) reasonably acceptable to the Administrative Agent and its counsel (including all amendments, supplements, schedules and exhibits thereto), and such Acquisition Documents shall be in full force and effect; and the IOS Transaction shall be consummated pursuant to such Acquisition Documents substantially concurrently with the making of the initial Loans hereunder without giving effect to any amendments, consents or waivers by the Loan Parties;
(xiv) Receipt of IOS’s Quality of Earnings report, in form and substance satisfactory to the Administrative Agent;
(xv) Satisfactory review of the amount and nature of all tax, ERISA, employee retirement benefit and all other contingent liabilities to which the Loan Parties may be subject; and
(xiixvi) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act.
Appears in 1 contract
Sources: Credit Agreement (Foster L B Co)
Deliveries. On the Closing Date, the The Administrative Agent shall have received each counterparts of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate the Ratification and Reaffirmation executed by Authorized Representatives of each of the Loan Parties signed parties thereto; (ii) this Fourth Amendment to Credit Agreement executed by an Authorized Officer Representatives of each the Borrower, dated the Closing Date stating Administrative Agent and the Syndication Agent; (iii) all documentation required by the Lenders to evidence and secure the Term D Loans; (iv) written verification that a portion of the payments to be made by Pepsi to the Borrower under the Pepsi Contract in an amount of no less than $1,200,000 has been received by the Borrower and deposited into the Guaranty Deposit Account together with a written commitment from Pepsi to make the balance of such payments under the Pepsi Contract on or before July 28, 2000 such that an aggregate amount of no less than $2,754,643 shall have been funded under the Pepsi Contract on or before July 28, 2000; (v) all representations and warranties a certificate from the Architect that the design of the Loan Parties set forth in this Agreement are true Main Project and correct in all material respects as of the Closing Date, except Parking Garage is complete (subject to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed variations approved by the Secretary or an Assistant Secretary Administrative Agent in its sole discretion) such design has been approved by all Governmental Authorities having jurisdiction over the Main Project and that all temporary certificates of occupancy for zones listed on SCHEDULE IV hereto have been issued by the due date for such temporary certificate of occupancy listed on said schedule; (vi) a certified copy of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect Contracts listed on the Closing Date certified by the appropriate state official where such documents are filed in a state office SCHEDULE V hereto together with certificates a continuation agreement from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto Contractor thereunder in form and substance content satisfactory to the Administrative Agent in its sole discretion; (vii) written confirmation that (x) the GECC Facility has been funded in an aggregate amount of at least $42,257,379.96 covering the Specified Property and its counsel naming the Gaming Equipment listed on SCHEDULE VI annexed hereto, (y) that the proceeds thereof have been received by the proper Person and (z) to the extent that the Borrower has received any proceeds, the Borrower has deposited such proceeds into the Guaranty Deposit Account; (viii) written confirmation from GECC that it will fund $37,742,620.04 from the GECC Facility on or before September 30, 2000 for the Specified Property and Gaming Equipment listed on SCHEDULE VII annexed hereto, subject to and in accordance with the terms of the GECC Facility Agreement (of which no less than $30,000,000 shall be funded on or before August 30, 2000 with the balance being funded on or before September 30, 2000) such that the aggregate amount funded from the GECC Facility on or before September 30, 2000 shall be no less than the aggregate amount of $80,000,000; (ix) an effective amendment to the GECC Facilities Agreement which conforms the GECC Facilities Agreement to the Credit Agreement, as amended by the Fourth Amendment to Credit Agreement, and includes the consent of GECC to the execution and delivery hereof; (x) a general release substantially in the form of the release set forth in SECTION 5.7 of this Fourth Amendment to Credit Agreement in favor of the Lenders and the Agents from each of the Aladdin Parties, the London Clubs Parties and all other Persons as required by the Administrative Agent as additional insured through the Effective Date of this Fourth Amendment of Credit Agreement; and lender loss payee;
(viixi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as items required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as by the Administrative Agent or its counsel may reasonably requestany of the Lenders.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date Date, stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the their representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrower delivered to the Administrative Agent, 2010;and covering such other matters as the Administrative Agent and Lenders may require.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1;Administrative Agent.
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;.
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;Borrower.
(viiivii) All material consents required to effectuate the transactions contemplated hereby;.
(ixviii) Evidence that the Existing Loan Agreement dated May 1, 2006 among Borrower and ▇▇▇▇▇ Fargo Foothill, Inc., as administrative agent, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;.
(ix) A Lien search in acceptable scope and with acceptable results.
(x) Results of searches or other evidence An executed landlord’s waiver in form and substance reasonably satisfactory to the Administrative Agent (with respect to Borrower’s principal place of business and bailee’s waivers in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens form and Liens for which termination statements and releases substance reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension from the bailee for each Collateral location not owned by a Loan Party (other than the Borrower’s principal place of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;business).
(xi) An executed Collateral Access Agreement or other lien waiver agreement from acceptable environmental audit with respect to real properties owned by the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; andLoan Parties.
(xii) Negative pledge agreements in recordable form with respect to each parcel of real property in which any Loan Party has an ownership interest, executed by such Loan Party, all in form and substance satisfactory to the Administrative Agent.
(xiii) Such other documents, instruments and agreements documents in connection with such transactions and completion of such due diligence as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On The Company shall cause to be delivered to the Closing DateUnderwriters:
4.1 as soon as they are available to the Company, copies of the Supplemented Prospectus, the Administrative Agent shall have received Registration Statement, any Amendments, as required by the Securities Laws and any Issuer Free Writing Prospectus, in each case as soon as available to the Company and in such quantities as the Underwriters may from time to time reasonably request;
4.2 contemporaneously with or prior to the filing of the Supplemented Prospectus and any Amendment with the securities commissions or other securities regulatory authorities in the Qualifying Jurisdictions: (i) a copy of any other document required to be filed by the Company under the Securities Laws in connection with the Offering; and (ii) evidence satisfactory to the Underwriters that application for the approval of the listing and posting for trading on the Stock Exchanges of the Offered Shares has been made;
4.3 at each of (i) the Execution Time and (ii) each of the following Closing Time and Option Closing Time:
4.3.1 PricewaterhouseCoopers LLP, as auditor for the Company, shall have delivered one or more letters, in form and substance reasonably satisfactory to the Administrative Agent:
Lead Underwriter, addressed to the Underwriters and the board of directors of the Company and dated, as applicable, the date hereof, (i) A certificate of each confirming that they are independent public accountants within the meaning of the Loan Parties signed by an Authorized Officer of each Borrower, dated Securities Act and the Closing Date stating that U.S. Public Company Accounting Oversight Board (v“PCAOB”) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the covenants and conditions hereunder, (x) no Potential Default or Event of Default existsSEC, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared stating, as of the Closing Date date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified Financial Information is given in substantially the form U.S. Prospectus and the Canadian Prospectus, as of Exhibit 7.3.4.1a date not more than three days prior to such date), showing the sum conclusions and findings of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect such firm with respect to the Loans to be made on the Closing Date and consummation Financial Information of the transactions Company (other than as contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunderby Section 4.3.2 below) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed other matters ordinarily covered by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party accountants’ “comfort letters” to underwriters in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;registered public offerings.
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of 4.3.2 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP(a member firm of PricewaterhouseCoopers International Limited), counsel as auditor for the Loan PartiesEden Holdings, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effectshall have delivered one or more letters, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent Lead Underwriter, addressed to the Underwriters and dated, as applicable, the date hereof, (i) confirming that they are independent public accountants with respect to Eden Holdings and its counsel naming subsidiaries under Rule 101 of the Administrative Agent as additional insured Code of Professional Conduct of the American Institute of Certified Public Accountants, and lender loss payee;
its rulings and interpretations, and (viiii) A duly completed Compliance Certificate stating, as of the last day date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified Financial Information is given in the fiscal quarter most recent U.S. Prospectus and the Canadian Prospectus, as of DSW most recently ended a date not more than three days prior to such date), the conclusions and findings of such firm with respect to the Financial Information of Eden Holdings and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
4.4 as soon as it is available, and in any event prior to the Closing DateTime, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as Lead Underwriter of a date reasonably satisfactory the approval of the listing and posting for trading on the Stock Exchanges of the Purchased Shares and the Option Shares, subject only to the Administrative Agent) indicating satisfaction by the absence Company of Liens on certain standard listing conditions.
4.5 as soon as they are available to the assets Company, such numbers of copies of the Loan PartiesSupplemented Prospectus and any Amendment for distribution to purchasers of the Offered Shares, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel Underwriters may reasonably require, without charge, in such cities in the Qualifying Jurisdictions as the Underwriters may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the date of the Closing Date in substantially last audited financial statements of the form of Exhibit 7.3.4.1Borrower delivered to the Administrative Agent, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case (z) after giving effect to the initial Loans to be made on the Closing Date and consummation hereunder, each of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Parties is Solvent;
(iiiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer setting forth pro-forma compliance of DSWthe Borrower and its subsidiaries on a consolidated basis, after giving effect to the Loans (the “Closing Date Compliance Certificate”);
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Credit Agreement has been terminated, and all outstanding obligations thereunder have been paid paid;
(ix) A Lien search in acceptable scope and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results Pro forma projections (including a pro forma closing balance sheet, pro forma statements of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agentoperations and cash flows) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeyears 2013 through 2017, including assumptions used in preparing the forecast financial statements;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (Ii-Vi Inc)
Deliveries. On the Closing Date, the Administrative Agent Company or Shareholders, as appropriate, shall have received delivered to Purchaser all of the following: copies of the third party and governmental consents and approvals referred to in SECTION 6.5 above; the stock certificates issued to each of the following in form Shareholders representing the Shares, duly endorsed for transfer or accompanied by a duly executed stock power, with requisite stock transfer stamps, if any, attached; the Company's and substance reasonably satisfactory its Subsidiaries' minute books, stock transfer records, corporate seal and other materials related to the Administrative Agent:
Company's and its Subsidiaries' corporate administration; resignations (i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects effective as of the Closing Date, except ) from such of the Company's and its Subsidiaries' officers and members of the Company's and its Subsidiaries' Board of Directors as Purchaser shall have requested prior to the extent Closing Date; Certificates of Good Standing dated as of a recent date from the Secretary(ies) of State of the State(s) of incorporation of the Company and its Subsidiaries evidencing the good standing of the Company and its Subsidiaries in each such representations and warranties are modified by “materiality” jurisdiction, as well as Certificates of Good Standing or “Material Adverse Change” or words Certificates of similar import, Authority from each jurisdiction in which case they are true and correct the Company or its Subsidiaries is authorized to do business as a foreign corporation; A certificate in all respects, (w) form reasonably acceptable to Purchaser from the Loan Parties Chief Financial Officer of the Company certifying that the Financial Statements are in compliance with each SECTION 4.2; The lockup agreements and letters of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date investment intent in substantially the form of Exhibit 7.3.4.1the attached EXHIBITS A AND D, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on handrespectively, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date completed and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signaturesShareholders; and (c) copies of its organizational such other certificates, documents and instruments as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as Purchaser reasonably requests related to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On At the Closing DateClosing, the Administrative Agent Company shall have received deliver the following items to the Series C Investors, against: (i) payment by each Series C Investor of its respective portion of the following Purchase Price in form connection with the Series C-1 Preferred Shares purchase by it; (ii) payment by each Series C Investor of its respective portion of the Purchase Price in connection with the Series C-3 Preferred Shares purchased by it; and substance reasonably satisfactory (iii) delivery by each Lender of a notice of conversion with respect to its Note, together with the Administrative Agentoriginal Note surrendered by it for cancellation:
(a) (i) A certificate of each a copy of the Loan Parties signed by an Authorized Officer register of each Borrower, dated the Closing Date stating that (v) all representations and warranties members of the Loan Parties set forth in this Agreement are true and correct in all material respects Company as at the date of the Closing Datereflecting each Series C Investor’s and each Lender’s ownership of the respective Purchased Shares, except (ii) a copy of the register of directors as at the date of the Closing, each certified by a director of the Company to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are be a true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default existscomplete copy thereof, and (yiii) no Material Adverse Change has occurred since January 30, 2010a table showing the capitalization of the Company on a fully-diluted basis immediately after the Closing;
(iib) A Simplified Borrowing Base Certificate prepared as of duly issued share certificates to each Series C Investor and each Lenders representing the Closing Date in substantially respective Shares purchased by such Series C Investor or the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Lender;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each compliance certificate dated as of the Closing Date and opining signed by each Warrantor or a duly authorized representative of each Warrantor, as to applicable, certifying that all of the matters conditions set forth in Schedule 6.1.1Section 5 (other than Section 5.4) have been fulfilled, and attaching and certifying as true and complete a copy of the Company’s Agreed M&A as in effect as of the Closing;
(vid) Evidence a certificate of good standing issued by the Registrar of Companies of the Cayman Islands dated no earlier than ten (10) Business Days prior to the Closing certifying that adequate insurance the Company has been duly incorporated, has paid all required fees and taxes, and is validly existing and in good standing under the laws of the Cayman Islands;
(e) a certificate of good standing issued by the Registrar of Companies of the British Virgin Islands dated no earlier than ten (10) Business Days prior to be maintained the Closing certifying that CCH has been duly incorporated, has paid all required fees and taxes, and is validly existing and in good standing under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto the laws of the British Virgin Islands;
(f) a legal opinion of the Company’s Cayman Islands counsel in form and substance satisfactory to the Administrative Agent Series C Investors and its counsel naming the Administrative Agent as additional insured and lender loss payeeLenders;
(viig) A duly completed Compliance Certificate as a legal opinion of the last day of the fiscal quarter of DSW most recently ended prior CCH’s British Virgin Islands counsel in form and substance satisfactory to the Closing Date, signed by an Authorized Officer of DSWSeries C Investors and the Lenders;
(viiih) All material consents required to effectuate a legal opinion of the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, Company’s PRC counsel in form and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center Series C Investors and the main distribution center as required under the Security AgreementLenders; and
(xiii) Such other documentsBoard, instruments and agreements in connection with such if necessary, members resolutions of the applicable Group Companies approving the transactions as the Administrative Agent or its counsel may reasonably requestcontemplated herein.
Appears in 1 contract
Sources: Series C Preferred Share Purchase Agreement (ChinaCache International Holdings Ltd.)
Deliveries. On ICT Holdco shall deliver or cause to be delivered to North Sur and North Sur Subco the Closing Datefollowing in form and substance satisfactory to North Sur, acting reasonably:
(i) certificates of ICT Holdco certifying the Administrative Agent shall have received each accuracy of the following items set forth in Sections 3.2(a) and 3.2(b) in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010North Sur;
(ii) A Simplified Borrowing Base Certificate prepared as certificates of two senior officers of ICT Holdco certifying the accuracy of the Closing Date items set forth in substantially the form of Exhibit 7.3.4.1Sections 3.2(a), showing the sum of Revolving Credit Availability plus the Borrowers’ cash 3.2(b) and cash equivalents then on hand3.2(c), in each case after giving effect form and substance reasonably satisfactory to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000North Sur;
(iii) A certificate dated certificates representing the Closing Date and signed by the Secretary outstanding ICT Holdco Shares or an Assistant Secretary of each of the Loan Partiesother evidence, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized reasonably satisfactory to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as North Sur to be exchanged for North Sur Post- Consolidation Shares pursuant to the continued existence and good standing Amalgamation in accordance with the provisions of each Loan Party in each state where organized or qualified to do businessthis Agreement;
(iv) This Agreement original share registers, share transfer ledgers, minute books and corporate seals (if any) of each of the other Loan Documents signed by an Authorized Officer of each Loan Party ICT Parties and all appropriate financing statements their corresponding ICT Books and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralRecords;
(v) A written opinion certificates of status, compliance, good standing or like certificates with respect to each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as ICT Parties issued by applicable government officials of the Closing Date and opining as to the matters set forth in Schedule 6.1.1their respective jurisdictions of incorporation/organization;
(vi) Evidence that adequate insurance certified copies of:
(A) the charter documents and by-laws of each of the ICT Parties;
(B) certificates of incumbency;
(C) the resolution of the board of directors of ICT Holdco authorizing the execution, delivery and performance of this Agreement and all Contracts, instruments, certificates and other documents required by this Agreement to be maintained under delivered by ICT Holdco as contemplated by this Agreement is in full force and effectAgreement; and
(D) the ICT Holdco Amalgamation Resolution;
(vii) the TSXV Escrow Agreement, with additional insured and lender loss payable endorsements attached thereto duly executed by the parties to such agreement (other than North Sur);
(viii) the Escrow Agreement, duly executed by the parties to such agreement (other than North Sur);
(ix) a legal opinion in form and substance satisfactory to North Sur and North Sur Subco, each acting reasonably, and the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;TSXV that sets out, among other things:
(viii) A duly completed Compliance Certificate as the corporate good standing of each of ICT Holdco and ICT Subco; and (ii) the last day legal and beneficial holdings of the fiscal quarter each of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, ICT Holdco’s and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedICT Subco’s securities;
(x) Results ICT Holdco shall cause each U.S. Person that is a shareholder of searches or other evidence reasonably satisfactory ICT Holdco and is entitled to receive North Sur Shares in connection with the Administrative Agent (Amalgamation at the Effective Time, to execute and deliver the U.S. Accredited Investor Certificate, attached hereto as Schedule “E”, to North Sur. It being understood that any U.S. Person that is shareholder of ICT Holdco that does not execute and deliver the U.S. Accredited Investor Certificate shall not be issued North Sur Shares in each case dated as of a date reasonably satisfactory to connection with the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;Amalgamation; and
(xi) An executed Collateral Access Agreement or such other lien waiver agreement from documentation as North Sur reasonably requests on a timely basis in order to establish the lessor, or other applicable Person for completion of the fulfillment center Transaction and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements taking of all corporate proceedings in connection with such transactions the Transaction (as the Administrative Agent or its counsel may reasonably requestto certification and otherwise), in each case in form and substance satisfactory to North Sur, acting reasonably.
Appears in 1 contract
Sources: Amalgamation Agreement
Deliveries. On No later than the Closing DateDate (or such later date as Agent shall specify in its sole discretion), the Administrative Agent shall have received each of the following (which, in the case of instruments and documents, must (unless otherwise stated below) be originals, duly executed, and in form and substance reasonably satisfactory to the Administrative Agent:):
(i) A certificate of each of This Agreement and the Loan Parties signed Notes duly executed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010Company;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Delegation Form;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all resolutions and other corporate or other organizational action taken by each Loan Party the Company in connection with this Agreement and the other Loan Documents; (bB) the names and titles of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents the Organizational Documents of the Company as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Company in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed A security agreement duly executed by an Authorized Officer of each Loan Party and the Company granting to Agent, for the benefit of the Lending Parties, a first priority Lien, subject only to Permitted Liens, on all appropriate financing statements and appropriate stock powers and certificates and other documentsPersonal Property Collateral of the Company, instruments and agreements evidencing the pledged Collateralwhether now owned or hereafter acquired, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collaterala UCC-1 Financing Statement;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Evidence, including a Lien search in acceptable scope from a provider satisfactory to Agent, that the security interests in and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPLiens on the Collateral are valid, counsel for the Loan Partiesenforceable, each dated as of the Closing Date and opining as properly perfected in a manner acceptable to the matters set forth in Schedule 6.1.1Agent and prior to all other Liens (other than Permitted Liens);
(vi) An executed landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator, or other applicable Person for each Collateral location as required under or in connection with any security agreement;
(vii) A mortgage or deed of trust in recordable form and duly executed by an Authorized Officer of the Company, in a face amount of no less than $132,000,000, granting to Lender a first priority Lien (subject only to Permitted Liens) on the Real Property Collateral;
(viii) A commitment to issue an ALTA lender’s title insurance policy, in a form and from a title insurance company acceptable to Agent, in a face amount of no less than $66,000,000, insuring Lender’s first priority Lien on the Real Property Collateral, with only such exceptions as may be approved by Agent, together with such endorsements as Agent may require (the “Title Policy”);
(ix) An appraisal of the Real Property Collateral which indicates that the Real Property Collateral has an appraised value of $110,000,000 or more and which is otherwise satisfactory to Agent;
(x) A survey of the Real Property Collateral satisfactory to Agent, with identification of each item with the corresponding exception number from the Title Policy, together with a certificate of the surveyor or other Person acceptable to Agent that the Real Property Collateral is or is not, as the case may be, in a special flood hazard area for purposes of the National Flood Insurance Program;
(xi) A subordination agreement duly executed by Bunge and ICM containing, among other things, subordination provisions related to the Subordinated Debt;
(xii) Evidence that the Company has taken all actions required under the Flood Laws or requested by Agent to assist in ensuring that Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing Agent with the address or GPS coordinates of each structure on any real property that will be subject to mortgages or deeds of trust, and to the extent required under Section 6.6, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral;
(xiii) A written opinion of counsel for the Company, dated no later than the Closing Date, in form and substance and from counsel reasonably satisfactory to Agent;
(xiv) Evidence that adequate insurance, including flood insurance on any Real Property Collateral, if applicable, required to be maintained under this Agreement or any other Loan Document is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel (retained, engaged or employed by Agent) naming Agent, for the Administrative Agent benefit of the Lending Parties, as additional insured insured, mortgagee and lender loss payee;
(viixv) A duly completed Compliance Certificate in form and substance satisfactory to Agent, as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing DateMay 31, 2014, signed by an Authorized Officer of DSWthe Company, together with (A) the financial statements required by Section 6.1(a) for the month ended May 31, 2014 and (B) a balance sheet for the month ended May 31, 2014, prepared on a pro forma basis which gives effect to the consummation of the transactions contemplated by this Agreement, any dividends or other distributions contemplated to be made with the proceeds of the Loans and any principal or interest payments on the Subordinated Debt contemplated to be made with the proceeds of the Loans, in each case, as of May 31, 2014. The Compliance Certificate submitted to Agent pursuant to this Section 4.1(a)(xv) may be based upon the information set forth in the pro forma balance sheet required under clause (B) above;
(viiixvi) All Evidence of filing of all Official Body consents, approvals and filings, and all material third party consents and approvals required to effectuate the transactions contemplated hereby;
(ixxvii) A Phase I environmental assessment of the Real Property Collateral performed by an environmental assessment firm satisfactory to Agent or other environmental assessments and due diligence satisfactory to Agent;
(xviii) Evidence of compliance with Section 6.2 and a favorable determination of eligibility of the Company to borrow from Lender;
(xix) A payoff letter from AgStar Financial Services, PCA confirming the amount required to pay off all Indebtedness owing to such lender by the Company and confirming the discharge, release and termination of all Liens on the property of the Company upon receipt of such payoff amount;
(xx) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder applicable maturity dates for the Subordinated Debt have been paid and all Liens securing such obligations have been releasedextended to July 1, 2023 or later;
(xxxi) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets A copy of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to Risk Management Policy of the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementCompany; and
(xiixxii) Such All other documents, instruments and agreements in connection with such transactions Loan Documents as the Administrative Agent or its counsel may reasonably requestrequest in connection with this Agreement or any of the foregoing documents, instruments, or agreements.
Appears in 1 contract
Sources: Credit Agreement (Southwest Iowa Renewable Energy, LLC)
Deliveries. On The Administrative Agent’s receipt of the Closing Datefollowing, the Administrative Agent shall have received each of which shall be originals or emailed PDFs (followed promptly by originals upon request) unless otherwise specified, each properly executed by a Responsible Officer of the following Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of Agent and each of the Loan Parties signed Lenders: executed counterparts of this Agreement; an original Note executed by an Authorized Officer the Borrower in favor of each BorrowerLender requesting a Note at least five (5) Business Days prior to the Effective Date; such certificates of resolutions or other action, dated incumbency certificates and/or other certificates of Responsible Officers as the Closing Date stating that (v) all representations Administrative Agent may reasonably require evidencing the identity and warranties authority of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan DocumentsDocuments to which the Borrower is a party; (b) such documents and certifications as the names Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed and that the Borrower is validly existing, and in good standing in its jurisdiction of organization, including certified copies of the Authorized Officers authorized to sign the Loan Borrower’s Organization Documents and their true signatures; and (c) copies certificate of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates good standing from the appropriate state officials as to the continued existence and good standing Borrower’s jurisdiction of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by organization; an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory addressed to the Administrative Agent and its counsel naming each Lender; and a certificate of a Responsible Officer of the Administrative Agent as additional insured Borrower certifying that (A) the representations and lender loss payee;
(vii) A duly completed Compliance Certificate warranties of the Borrower contained in Article V are true and correct in all material respects on and as of the last day of Effective Date and (B) the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiicondition specified in Section 4.02(b) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestsatisfied.
Appears in 1 contract
Sources: Revolving Credit Agreement (Darden Restaurants Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, no litigation which is materially adverse to the Borrower and (y) its Subsidiaries, taken as a whole, exists and no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto effect in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeecounsel;
(viivi) A duly completed Compliance Certificate and a certificate as to the Solvency of the Borrower as of the last day of the fiscal quarter of DSW the Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrower;
(vii) A Lien search in acceptable scope and with acceptable results;
(viii) All material consents consents, approvals and licenses required to effectuate the transactions contemplated herebyhereby have been obtained;
(ix) Evidence that The projected financial projections (including balance sheets, statements of operations and cash flows) of the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedBorrower for the 2013 through 2017 fiscal years;
(x) Results The consolidated and consolidating audited year-end financial statements for and as of searches or other evidence reasonably the three (3) fiscal years ended December 31, 2012 of the Borrower, together with (i) unaudited interim financial statements for the most recently ended fiscal quarter and a comparison against the current year-to-date financial statements and (ii) copies of the unqualified reports of independent certified public accounts that conducted such annual audits;
(xi) Evidence that after giving effect to the transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity to conduct its operations as projected in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent;
(xii) An Authorized Officer of the Borrower shall have delivered a certificate in form and substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets capital adequacy and solvency of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Borrower after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementtransactions contemplated hereby; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) An executed counterpart of this Amendment executed on behalf of (i) each of the Loan Parties, (ii) the Administrative Agent and (iii) each Lender and Issuing Lender.
(ii) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Fourth Amendment and Restatement Effective Date stating that (vx) all representations and warranties certifying as to the satisfaction of the Loan Parties conditions set forth in this Agreement are true Section 2.2(b) and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wk) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) stating that no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the date of the Closing Date in substantially last audited financial statements of the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect Borrower delivered to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;Administrative Agent.
(iii) A certificate dated the Closing Fourth Amendment and Restatement Effective Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Amendment and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) there having been no changes to its organizational documents, or, if there have been changes, copies of its organizational documents as in effect on the Closing Fourth Amendment and Restatement Effective Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each its state where organized or qualified to do business;of organization.
(iv) This Agreement Opinion addressed to the Administrative Agent and each of the other Loan Documents signed by an Authorized Officer of each Loan Party Lenders and all appropriate financing statements dated the Fourth Amendment and appropriate stock powers and certificates and other documents, instruments and agreements evidencing Restatement Effective Date as to such matters incident to the pledged Collateral, and evidence of filing of all Collateral Documents transactions contemplated herein as the Administrative Agent may be necessary to reflect valid and perfected first priority Liens in the Collateral;
reasonably request from (vi) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ LLP, as Pennsylvania and Delaware counsel to the Loan Parties, (ii) ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., as Colorado counsel to the Loan Parties and (iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as Indiana counsel for to the Loan Parties, each dated as of the Closing Date .
(v) A Lien search in acceptable scope and opining as to the matters set forth in Schedule 6.1.1;with acceptable results.
(vi) Evidence With respect to each structure on any real property that adequate is encumbered by a Mortgage, the Administrative Agent shall have received a life-of-loan Federal Emergency Management Agency flood hazard determination, and, to the extent any such structure is located in a special flood hazard area, the Administrative Agent shall have received (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and (ii) evidence of flood insurance as required to be maintained under this Agreement is in full force the Amended and effect, with additional insured and lender loss payable endorsements attached thereto Restated Credit Agreement.
(vii) A certificate in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, capital adequacy and solvency of each Loan Party after giving effect to the transactions contemplated hereby signed by an Authorized Officer of DSW;each Loan Party, acting in its capacity as such officers.
(viii) All material consents required Such documentation and other information requested by the Administrative Agent and each Lender in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, in form and substance acceptable to effectuate the transactions contemplated hereby;Administrative Agent and each Lender.
(ix) Evidence that An executed Loan Request with respect to the Existing Loan Agreement has been terminatedInitial Term A Loans no later than (i) in the case of Initial Term A Loans to which the Term SOFR Rate Option applies, 10:00 a.m., two (2) Business Days prior to the Fourth Amendment and all outstanding obligations thereunder have been paid Restatement Effective Date and all Liens securing such obligations have been released;(ii) in the case of Initial Term A Loans to which the Base Rate Option applies, 10:00 a.m., one (1) Business Day prior to the Fourth Amendment and Restatement Effective Date.
(x) Results of searches or other evidence reasonably satisfactory An executed prepayment notice with respect to the Administrative Agent 2023 Term Loans (as defined in each case dated as of a date reasonably satisfactory the Credit Agreement) by 1:00 p.m. at least one (1) Business Day prior to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Fourth Amendment and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;Restatement Effective Date.
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under copy of the Security Agreement; and, duly executed by each Loan Party (including Hallador Renewables, LLC and its Subsidiaries).
(xii) Such other documentsAn executed copy of the Pledge Agreement, instruments duly executed by each Loan Party (including Hallador Renewables, LLC and agreements in connection with such transactions as its Subsidiaries), Hallador Sands, LLC and Hourglass Sands, LLC.
(xiii) An executed copy of the Administrative Agent or Collateral Assignment, duly executed by each Loan Party (including Hallador Renewables, LLC and its counsel may reasonably requestSubsidiaries).
(xiv) An executed copy of the Guaranty Agreement, duly executed by each of the Guarantors (including Hallador Renewables, LLC and its Subsidiaries).
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects on such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the Closing Date, except specific dates or times referred to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respectstherein), (wB) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default or Potential Default exists, and (yD) no Material Adverse Change has in any Loan Party or Subsidiary of any Loan Party shall have occurred since January 30last certified to the Administrative Agent under the Existing Credit Agreement, 2010and (E) the Loan Parties are in compliance with ERISA, the Code and other applicable Laws applicable to Plan and Benefit Arrangements except where such failure, alone or in conjunction with any other failure, would not result in a Material Adverse Change, and all Plans maintained by any ERISA Group are funded in accordance with the minimum funding requirements of ERISA;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Pledged Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(vii) Delivery of the Financial Projections in form and substance satisfactory to the Administrative Agent;
(viii) All material consents consents, approvals and licenses required to effectuate the transactions contemplated herebyhereby as set forth on Schedule 6.1.13 shall have been obtained, and there shall be an absence of any legal or regulatory prohibitions or restrictions;
(ix) Evidence that the The Existing Loan Credit Agreement has shall have been terminated, terminated and all outstanding obligations thereunder shall be deemed to be Obligations hereunder, and such Obligations shall be allocated to each Lender on the Closing Date in accordance with such Lender’s Ratable Share; the Administrative Agent shall have been paid and all Liens securing such obligations have been releasedoutstanding amounts owed to any lender under the Existing Credit Agreement who is not a Lender under this Agreement;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An Landlord’s Waivers executed Collateral Access Agreement or other lien waiver agreement and delivered to the Administrative Agent, on a commercially reasonable best efforts basis, from the lessorlessors of certain of the leased Collateral locations as identified on Schedule 1.1(L);
(xii) With respect to each Loan Party and each Subsidiary of each Loan Party, the capital structure, ownership, organization documents (including, without limitation, articles or other applicable Person for certificate of incorporation, certificate of limited partnership, certificate of limited liability company, bylaws, partnership agreements, and limited liability company agreements), shareholder agreements or similar agreements among equity owners shall be reasonably satisfactory, in form and substance, to the fulfillment center and the main distribution center as required under the Security AgreementAdministrative Agent; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30December 31, 2010;2009.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or an Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state or foreign jurisdiction official where such documents are filed in a the appropriate state or foreign jurisdiction office together with certificates from the appropriate state or foreign jurisdiction office officials as to the continued existence and good standing (or foreign jurisdiction equivalent, if any) of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents (subject to Section 7.3 [Post-Closing Covenant]) signed by an Authorized Officer of each Loan Party and Officer, all appropriate financing statements and statements, appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged CollateralCollateral and deposit account control agreements, in form and evidence substance reasonably satisfactory to the Administrative Agent, with respect to each deposit account of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDomestic Loan Parties;
(viv) A written opinion Written opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP domestic and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, foreign counsel for the Loan PartiesParties (in each case in accordance with relevant local law and local market practice), each dated as of the Closing Date and, subject to such local law and opining local market practice, as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently Company ended prior to the Closing DateJune 30, 2010, signed by an Authorized Officer of DSWCompany;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement Prior Senior Credit Facility has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing DateFunding Date (or at such other time as provided in this Section 7.2), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Funding Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 20102020 (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) there is no action, suit, investigation or proceeding pending, or to the knowledge of the Borrower, threatened in any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the conditions stated in this Section 7.2 and Section 7.3 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Funding Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Funding Date, to the extent applicable, certified as of a sufficiently recent date prior to the Funding Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization;
(iii) to the extent not delivered on the Funding Date, each state where organized or qualified to do businessof the Loan Documents duly executed by the parties thereto;
(iv) This Agreement and each written opinion(s) of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Funding Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence on or prior to the Funding Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(viivi) A a duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW Holdings most recently ended prior to the Closing Funding Date, signed by an Authorized Officer of DSWthe Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Funding Date and the Transactions on a Pro Forma Basis, (A) the Consolidated Total Net Leverage Ratio does not exceed 2.75 to 1.00 and (B); the Loan Parties are in compliance with Section 9.12.
(vii) all material consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(ix) indicating receipt by the absence of Liens on the assets Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan PartiesParty;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to deemed unnecessary by the Administrative Agent for in its reasonable discretion under the delivery Law of the jurisdiction of organization of such termination statements Person);
(D) searches of ownership of, and releases have been madeLiens on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(x) a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center Statements and the main distribution center as required under the Security Agreement; andProjections;
(xii) Such evidence that (A) the Holdings IPO has occurred or will occur substantially concurrently with the initial funding of the Facilities and (B) Holdings shall have made a cash equity contribution to the Borrower with the net proceeds of the Holdings IPO in an aggregate amount of at least $100,000,000 (the “Funding Date Equity Contribution”);
(xiii) the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act;
(xiv) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Company signed by an Authorized Officer of each Borrowerthe Company, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default exists, or Potential Default exists and (yD) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Consolidated Subsidiaries which could reasonably be expected to have a Material Adverse Change has occurred since January 30, 2010Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Director of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (or foreign jurisdictional equivalent in each jurisdiction where such certification is required) of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Opinions of counsel for each Loan Party of the Borrowers, dated the Closing Date, each in form and all appropriate financing statements substance acceptable to the Administrative Agent and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralLenders;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel duly completed Compliance Certificate for the Loan Partiesfiscal period ending August 31, each dated as 2014, signed by an Authorized Officer of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Company;
(vi) Evidence that adequate insurance required to be maintained under this the Credit Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate dated as of June 29, 2012, among the last day of Borrowers, the fiscal quarter of DSW most recently ended prior to other foreign borrowers a party thereto, the Closing Datelenders a party thereto and PNC, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement as administrative agent, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(xvii) Results A completed and executed Loan Request from the Borrowers in substantially the form of searches or other evidence reasonably satisfactory to Exhibit 2.5.1 and, if applicable, Swing Loan Request from the Administrative Agent (Borrowers in each case dated as substantially the form of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeExhibit 2.5.2;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiiviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request, including, but not limited to, all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act; and
(ix) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (RPM International Inc/De/)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct (A) in the case of representations and warranties qualified by materiality, in all respects and (B) in the case of other representations and warranties, in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default exists, or Potential Default exists and (yd) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official Official Body where such documents are filed in a state office with an Official Body together with certificates from the appropriate state officials Official Body as to the continued existence and good standing of each Loan Party in each state jurisdiction where organized or qualified to do business;
(iii) A solvency certificate from the chief financial officer of the Borrowers substantially in the form attached hereto as Exhibit 7.1.1;
(iv) This Agreement and each of the other Loan Documents and the Perfection Certificate(s) signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(v) A written opinion The executed legal opinions of each of ▇(a) O▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇Frome W▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date, (b) O’Neil, Cannon, Hollman, D▇▇▇▇▇ & L▇▇▇▇ S.C., Wisconsin local counsel for the Loan Parties, dated the Closing Date (c) Stikeman Elliott LLP, Canadian local counsel for the Loan Parties, and opining as (d) Squire P▇▇▇▇▇ ▇▇▇▇▇ (UK) LLP, UK local counsel for the Administrative Agent, dated the Closing Date, in each case in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent for the benefit of the Secured Parties as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Borrowers most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWthe Borrowers, demonstrating that, after giving effect to the Transactions, as of the Closing Date the Net Leverage Ratio does not exceed 3.00 to 1.00;
(viii) All material consents consents, regulatory approvals and licenses required to effectuate effectuate, the transactions and confirmation of an absence of any legal or regulatory prohibition with respect to, the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has credit facilities with PNC Bank, National Association, W▇▇▇▇ Fargo Bank, National Association and HSBC (other than the HSBC Facilities) have been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as Receipt of a date business plan and budget of each of the Borrowers on a consolidated basis, including forecasts prepared by management, of consolidated balance sheets, statements of operations and (on an annual basis only) statements of cash flow, in form and substance reasonably satisfactory to the Administrative Agent, (x) indicating on an annual basis through fiscal year 2021 and (y) on a quarterly basis through the absence of Liens on the assets of the Loan Partiesquarter ending December 31, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made2017;
(xi) An executed Collateral Access Agreement The Administrative Agent shall have received:
(a) reasonably satisfactory evidence that all certificates, agreements or other lien waiver agreement from instruments representing or evidencing the lessor, or other applicable Person for the fulfillment center Pledged Securities and the main distribution center Intercompany Notes (each as required under defined in the Security Agreement, Canadian Security Agreements, the UK Security Agreements, as applicable, and the Pledge Agreement), accompanied by instruments of transfer and stock powers undated and endorsed in blank have been delivered to the Administrative Agent; provided that such certificates, agreements or instruments may be delivered within two Business Days of the Closing Date if not delivered on or prior to the Closing Date;
(b) [Reserved]
(c) reasonably satisfactory evidence that the Borrowers have used commercially reasonable efforts to obtain all the other certificates, agreements, including Control Agreements (as defined in the Security Agreement, the Canadian Security Agreements, or the UK Security Agreements, as applicable), or instruments necessary to perfect the Administrative Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each Loan Party (as each such term is defined in the Security Agreement or Canadian Security Agreements, as applicable, and to the extent required by such Agreements) and, if applicable, such certificates, agreements or instruments have been delivered to the Administrative Agent;
(d) UCC and PPSA financing statements (including Fixture Filings) and UK filings in appropriate form for filing under the UCC, PPSA, UK Companies A▇▇ ▇▇▇▇, ▇▇ Land Charges A▇▇ ▇▇▇▇ and/or UK Land Registration A▇▇ ▇▇▇▇, as applicable, filings with the United States Patent and Trademark Office, United States Copyright Office, UK IP Office and Canadian Intellectual Property Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Collateral Documents;
(e) certified copies of UCC, PPSA, UK Companies House, UK Land Registry, United States Patent and Trademark Office and United States Copyright Office and Canadian Intellectual Property Office and UK IP Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) after giving effect to the Transactions; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower signed by a Compliance Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated as of the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement or the other Loan Documents are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement or such other Loan Document by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Change shall be true and correct in all respects, as of the Closing Date (wor, if such representation or warranty makes reference to an earlier date, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and the other Loan Documents, (xc) no Potential Default or Event of Default or Default exists, and (yd) there has occurred no Material Adverse Change since December 31, 2022, and (e) each of the Loan Parties has occurred since January 30, 2010satisfied each of the closing conditions required to be satisfied by it hereunder;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized organized;
(iii) evidence that there is no action, suit, proceeding or qualified investigation pending against, or threatened in writing against, any Loan Party or any of its respective Subsidiaries or any of their respective properties, including the Material Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to do businessresult in a Material Adverse Change;
(iv) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any FCC or PUC counsel, if required by the Administrative Agent), dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date; provided, however that no opinion of counsel shall be required for any Loan Parties that are incorporated outside of State of Delaware;
(vi) Evidence subject to Section 6.18, evidence that adequate insurance required to be maintained under this Agreement is in full force and effect;
(vii) a duly completed, executed Loan Request for Credit Extension for each Loan or Letter of Credit requested to be made on the Closing Date, including notice of election as to Interest Periods (if applicable);
(viii) a duly completed, executed Solvency Certificate signed by an Authorized Officer of each the Borrower;
(ix) evidence that all material governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(x) evidence that all outstanding obligations under the Existing Credit Agreement have been paid in full;
(xi) [reserved];
(xii) a Lien search with additional insured respect to the Borrower and lender loss payable endorsements attached thereto each other Loan Party, in form and substance scope satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured with results showing no Liens other than Permitted Liens and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably otherwise satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrowera Senior Officer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change material adverse change has occurred since January 30, 2010the date of the last audited financial statements of the Company delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Senior Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by a Senior Officer and, to the extent applicable, an Authorized Officer authorized officer of each of the Lenders whose names are set forth on Schedule 1.1(B) as of the Closing Date;
(iv) A written opinion of counsel for each of the Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentsParties, instruments and agreements evidencing dated the pledged Collateral, and evidence Closing Date (including an opinion of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDutch counsel);
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as Evidence of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate existence of insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory pursuant to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeSection 8.1.2 [Maintenance of Property; Insurance];
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW the Company most recently ended prior to the Closing Date, signed by an Authorized a Senior Officer of DSWthe Company;
(vii) All regulatory approvals and licenses necessary for the financing contemplated hereby shall have been completed and there shall be no legal or regulatory prohibitions or restrictions;
(viii) All material consents required to effectuate the transactions contemplated herebyA Lien search in acceptable scope and with acceptable results;
(ix) Evidence that the The Existing Loan Credit Agreement has shall have been terminated, amended and restated and all outstanding obligations thereunder shall be deemed to be Obligations hereunder, and such Obligations shall be allocated to each Lender on the Closing Date in accordance with such Lender’s Ratable Share; the Administrative Agent shall have been paid all outstanding amounts owed to any lender under the Existing Credit Agreement who is not a Lender under this Agreement, and all Liens securing such obligations not permitted hereunder shall have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act.
Appears in 1 contract
Sources: Refinancing Credit Agreement (Westinghouse Air Brake Technologies Corp)
Deliveries. On the Closing Date, the Administrative Agent Parent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates final invoice from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPUBS certifying that it has received all payments due to it from the Company, counsel including the payment required to be paid to it as Estimated Transaction Expenses pursuant to Section 1.12(b) hereof, and that payment of such amounts is in full satisfaction of all amounts owed to it by the Company or the Securityholders (in their respective capacities as such);
(ii) a statement, under penalties of perjury, certifying that the Company is not, and has never been during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code (the “Statement”), and authorization for Parent to mail the Statement to the United States Internal Revenue Service (“IRS”);
(iii) a certificate of good standing, or equivalent certificate, for the Loan PartiesCompany dated within five Business Days of the Closing Date, each dated issued by the appropriate Government;
(iv) a copy, certified by the Secretary of the Company to be true, complete and correct as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effectDate, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day organizational documents of the fiscal quarter Company, and resolutions of DSW most recently ended prior to the Closing DateShareholders and Board of Directors of the Company, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate authorizing and approving the transactions contemplated hereby;
(v) the Indemnification Escrow Agreement, duly executed by the Representative;
(vi) the Representative Expense Escrow Agreement, duly executed by the Representative
(vii) the Agreement of Merger and related officers’ certificate, duly executed by the Company;
(viii) all consents and approvals required to be obtained from those third parties under Contracts described on Schedule 7.3(h)(viii) hereto;
(ix) Evidence that the Existing Loan Agreement has been terminatedSpreadsheet contemplated by Section 1.9(a), in form and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedsubstance reasonably acceptable to Parent;
(x) Results evidence satisfactory to Parent of searches the termination and/or cancellation of all debt or equity investments included in the New Investment Adjustment Amount and any notes or other evidence reasonably satisfactory to of indebtedness related thereto upon the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets payment by Parent of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to Initial Merger Consideration in the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been mademanner contemplated by this Agreement;
(xi) An executed Collateral Access Agreement evidence satisfactory to Parent that all of the agreements listed on Schedule 7.3(h)(xi) have been validly terminated prior to Closing in accordance with their respective terms without any further liability or other lien waiver agreement from obligation to the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementCompany; and
(xii) Such other documents, instruments and agreements payoff statements from the appropriate Persons relating to all items of the Indebtedness or Post-Execution Investment Amounts that are contemplated to be paid off at or in connection with such transactions as the Administrative Agent or its counsel may reasonably requestClosing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Memc Electronic Materials Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(iA) A certificate of each of the Loan Parties Lead Borrower signed by an Authorized Officer of each the Lead Borrower, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents are true and correct in all material respects as of the Closing Date, except Date (unless qualified by materiality or reference to the extent absence of a Material Adverse Change, in which event such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects), (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xb) no Potential Default or Event of Default exists, or Potential Default exists and (yc) no Material Adverse Change has shall have occurred since January 3028, 20102017;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iiiB) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan PartiesParty, certifying as appropriate as to: (a) resolutions authorizing all action taken by each such Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers of such Loan Party authorized to sign the Loan Documents and their true signatures; and (c) copies of its such Loan Party’s organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each its state where organized or qualified to do businessof organization;
(ivC) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;Officer; 216004669
(vD) A written opinion Written opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date for the benefit of the Administrative Agent and opining as to the matters set forth in Schedule 6.1.1each Lender;
(viE) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, and with respect to liability insurance coverage, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viiF) Evidence that all Indebtedness not permitted under Section 7.2.1 [Indebtedness] shall have been paid in full (and all commitments in respect thereof terminated) and that all necessary termination statements, release statements and other releases in connection with all Liens (other than Permitted Liens) have been filed or satisfactory arrangements have been made for such filing (including payoff letters, if applicable, in form and substance reasonably satisfactory to the Administrative Agent);
(G) The Statements and the Projections;
(H) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Lead Borrower most recently ended prior to the Closing DateDate for which financial statements are available evidencing compliance with the financial covenants set forth in Section 7.2.13 [Minimum Fixed Charge Coverage Ratio] and Section 7.2.14 [Maximum Leverage Ratio], signed by an Authorized Officer of DSWBorrower (the “Closing Compliance Certificate”);
(viiiI) A certificate of an Authorized Officer of the Lead Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(J) All material regulatory approvals and material consents required to effectuate and licenses necessary for the consummation of the transactions contemplated herebyhereunder shall have been completed and there shall be an absence of any legal or regulatory prohibitions or restrictions in respect of the transactions contemplated hereunder;
(ixK) Evidence that the Existing Loan Agreement has been terminated, Lien searches in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(xL) Results of searches or All documentation and other evidence reasonably satisfactory to information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA Patriot Act; and
(xiiM) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. (a) On or prior to the Closing Date (except as noted), the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a Note with a Principal Amount equal to the amount set forth opposite such Purchaser’s name in column (2) on the Schedule of Purchasers attached hereto, registered in the name of the Purchaser, which Note shall become convertible upon the Company’s receipt of Exchange Approval in addition to the fulfillment of the other conditions for such Note to become convertible set forth in the Transaction Documents;
(iii) the Registration Rights Agreement, duly executed by the Company;
(iv) no later than ten (10) days after the Closing Date, the Administrative Agent shall have received each Voting Agreement of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each holders of the Loan Parties signed by an Authorized Officer Company’s outstanding Series B Preferred Stock, in the form attached hereto as Exhibit E (the “Voting Agreement”), which agreement shall not be revoked after the date hereof, which the Company shall use in furtherance of each Borrower, dated authorizing the Closing Date stating that sale and issuance of the Securities in excess of the Exchange Cap.
(v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of no later than ten (10) days after the Closing Date, except to the extent such representations Transfer Agent Instruction Letter, duly executed by the Company and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010Transfer Agent;
(iivi) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case no later than ten (10) days after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇Sichenzia R▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesCompany’s counsel;
(vii) no later than ten (10) days after the Closing Date, a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date no later than ten (10) days of the Closing Date;
(viii) no later than ten (10) days after the Closing Date, a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction, if any, in which the Company conducts business and is required to so qualify, as of a date no later than ten (10) days of the Closing Date;
(ix) no later than ten (10) days after the Closing Date, a certified copy of the Company’s certificate of incorporation, as certified by the Secretary of State of Delaware no later than ten (10) days after the Closing Date;
(x) a duly executed copy of the Amendment Agreement;
(xi) a certificate executed by the Secretary of the Company and dated as of the Closing Date and opining Date, as to (i) the matters set forth resolutions, as adopted by the Board of Directors in Schedule 6.1.1;
a form reasonably acceptable to the Purchasers, approving (viA) Evidence that adequate insurance required to be maintained under the entering into and performance of this Agreement is in full force and effectthe other Transaction Documents and the issuance, with additional insured offering and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as sale of the last day Securities and (B) the performance of the fiscal quarter Company and each of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer its Subsidiaries of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding their respective obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementTransaction Documents contemplated therein, (ii) the Company’s certificate of incorporation and (iii) the Company’s bylaws, each as in effect at the Closing; and
(xii) Such such other documents, instruments and agreements in connection with or certificates relating to the transactions contemplated by this Agreement as such transactions as the Administrative Agent Purchaser or its counsel may reasonably request.
(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, as applicable, the following:
(i) this Agreement, duly executed by the Purchaser;
(ii) the Purchaser’s Subscription Amount by wire transfer to the account specified in writing by the Company;
(iii) a duly executed copy of the Amendment Agreement; and
(iv) the Registration Rights Agreement, duly executed by the Purchaser.
Appears in 1 contract
Deliveries. On The REIT shall cause to be delivered to the Joint Bookrunners, on behalf of the Underwriters:
4.1 contemporaneously with the filing thereof with the Securities Commissions in each of the Qualifying Jurisdictions, copies in the English language and in the French language of the Preliminary Prospectus, the Prospectus and any Amendment, a copy of any other document required to be prepared and filed (in the English or French language, as applicable) by the REIT under the Securities Laws in connection therewith, together with copies of the U.S. Private Placement Memorandum, in each case, signed, where applicable, as required by the Securities Laws or by the U.S. Securities Laws;
4.2 at the time of the delivery to the Underwriters pursuant to this paragraph 4 of the Preliminary Prospectus, the Prospectus and any Amendment, in each case, in the French language:
4.2.1 an opinion of the REIT's counsel in Quebec, dated the date of such document, and reasonably acceptable in form and substance to the Underwriters' counsel, that except for any financial statements and notes thereto, Auditors' reports, management's discussion and analysis, summary and selected financial information, pro-forma capitalization and other financial information (collectively the "Financial Information") contained or incorporated by reference in such document, the document in the French language in all material respects is a complete and proper translation of the English version thereof; and
4.2.2 an opinion of the Auditors, dated the date of such document, and reasonably acceptable in form and substance to the Underwriters' counsel, that the Financial Information filed in the French language by the REIT under the Securities Laws in connection with such document and contained or incorporated by reference in such document in all material respects is a complete and proper translation of the English version thereof;
4.3 at the time of the delivery to the Underwriters pursuant to this paragraph 4 of the Prospectus, evidence satisfactory to the Underwriters of the approval of the listing and posting for trading on the Stock Exchange of the Offered Units subject only to satisfaction by the REIT of the conditions imposed by the Stock Exchange in the letter of the Stock Exchange granting conditional listing approval (the "Standard Listing Conditions");
4.4 at the Closing Time, the Over-Allotment Closing Time and at the time of the delivery to the Underwriters, pursuant to this paragraph 4, of the Prospectus or any Amendment, a comfort letter of the Auditors dated the Closing Date, Over- Allotment Closing Time or the Administrative Agent shall have received each date of the following Prospectus or Amendment, as the case may be, and addressed to the Underwriters and the Trustees, in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate Underwriters, relating to the financial information contained or incorporated by reference in the Prospectus or Amendment, as the case may be, and matters involving changes or developments since the respective dates of each which the financial information is given to a date not more than two Business Days prior to the date of such letter, which letter shall be in addition to the Auditors' report contained or incorporated by reference in the Prospectus or any Amendment, provided, however, that the form of the Loan Parties signed by an Authorized Officer of each Borrower, dated letter delivered at the Closing Date stating that Time and the Over-Allotment Closing Time shall be in the form of a "bring-down" letter;
4.5 without charge, at those delivery points in the Qualifying Jurisdictions as the Underwriters may reasonably request, as soon as possible and in any event to the City of Toronto no later than 12:00 noon (vlocal time) all representations on the second Business Day, and warranties to other cities no later than 12:00 noon (local time) on the third Business Day after the NP 11-202 receipt has been issued to the REIT for the Preliminary Prospectus and the Prospectus, respectively, and thereafter from time to time during the distribution of the Loan Parties set forth in this Agreement are true and correct in all material respects Offered Units, as many commercial copies of the Closing DatePreliminary Prospectus and the Prospectus in the English language and French language as the Underwriters may reasonably request. They shall similarly cause to be delivered commercial copies of any Amendment in the English and French languages, except but only to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar importthat, in which case they are true and correct in all respectsunder applicable Securities Laws, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as thereof may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory delivered to purchasers or prospective purchasers of the Offered Units. The REIT will similarly cause to be delivered to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing DateUnderwriters without charge, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the at those delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions points as the Administrative Agent or its counsel Underwriters may reasonably request, commercial copies of the Preliminary U.S. Private Placement Memorandum and the U.S. Private Placement Memorandum; and
4.6 during the period commencing on the date hereof and ending on the date of completion of the distribution of the Offered Units, the REIT will promptly provide to the Joint Bookrunners and their counsel drafts of any press release of the REIT or the REIT Entities relating to any of the REIT Entities, the Offering or the issuance of the Private Placement Units for review and approval by the Joint Bookrunners and their counsel, such approval not to be unreasonably withheld, prior to issuance.
Appears in 1 contract
Sources: Underwriting Agreement
Deliveries. On the Closing DateFunding Date (or at such other time as provided in this Section 7.2), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Funding Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 20102020 (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) there is no action, suit, investigation or proceeding pending, or to the knowledge of the Borrower, threatened in any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the conditions stated in this Section 7.2 and Section 7.3 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Funding Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Funding Date, to the extent applicable, certified as of a sufficiently recent date prior to the Funding Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization;
(iii) to the extent not delivered on the Funding Date, each state where organized or qualified to do businessof the Loan Documents duly executed by the parties thereto;
(iv) This Agreement and each written opinion(s) of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Funding Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence on or prior to the Funding Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(viivi) A a duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW Holdings most recently ended prior to the Closing Funding Date, signed by an Authorized Officer of DSWthe Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Funding Date and the Transactions on a Pro Forma Basis, (A) the Consolidated Total Net Leverage Ratio does not exceed 3.20 to 1.00 and (B); the Loan Parties are in compliance with Section 9.12.
(vii) all material consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(ix) indicating receipt by the absence of Liens on the assets Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan PartiesParty;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to deemed unnecessary by the Administrative Agent for in its reasonable discretion under the delivery Law of the jurisdiction of organization of such termination statements Person);
(D) searches of ownership of, and releases have been made▇▇▇▇▇ on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(x) a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center Statements and the main distribution center as required under the Security Agreement; andProjections;
(xii) Such [reserved];
(xiii) the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act;
(xiv) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing DateFunding Date (or at such other time as provided in this Section 7.2), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Funding Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 20102020 (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) there is no action, suit, investigation or proceeding pending, or to the knowledge of the Borrower, threatened in any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the conditions stated in this Section 7.2 and Section 7.3 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Funding Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Funding Date, to the extent applicable, certified as of a sufficiently recent date prior to the Funding Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization;
(iii) to the extent not delivered on the Funding Date, each state where organized or qualified to do businessof the Loan Documents duly executed by the parties thereto;
(iv) This Agreement and each written opinion(s) of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Funding Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence on or prior to the Funding Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(viivi) A a duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW Holdings most recently ended prior to the Closing Funding Date, signed by an Authorized Officer of DSWthe Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Funding Date and the Transactions on a Pro Forma Basis, (A) the Consolidated Total Net Leverage Ratio does not exceed 3.20 to 1.00 and (B); the Loan Parties are in compliance with Section 9.12.
(vii) all material consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(ix) indicating receipt by the absence of Liens on the assets Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan PartiesParty;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to deemed unnecessary by the Administrative Agent for in its reasonable discretion under the delivery Law of the jurisdiction of organization of such termination statements Person);
(D) searches of ownership of, and releases have been made▇▇▇▇▇ on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(x) a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center Statements and the main distribution center as required under the Security Agreement; andProjections;
(xii) Such [reserved];
(xiii) the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act;
(xiv) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Company signed by an Authorized Officer of each Borrowerthe Company, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default exists, or Potential Default exists and (yD) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Consolidated Subsidiaries which could reasonably be expected to have a Material Adverse Change has occurred since January 30, 2010Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Director of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (or foreign jurisdictional equivalent in each jurisdiction where such certification is required) of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion Opinions of counsel for each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPthe Borrowers, counsel for dated the Loan PartiesClosing Date, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory acceptable to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeLenders;
(viiv) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Company most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Company;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ixvi) Evidence that the Existing Loan Credit Agreement dated as of January 5, 2011, among the Borrowers, the other foreign borrowers a party thereto, the lenders a party thereto and PNC, as administrative agent, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(xvii) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the A completed and executed Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement Request from the lessorBorrowers in substantially the form of Exhibit 2.5.1 and, or other applicable Person for if applicable, Swing Loan Request from the fulfillment center and Borrowers in substantially the main distribution center as required under the Security Agreementform of Exhibit 2.5.2; and
(xiiviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited consolidated financial statements of the Parent Borrower delivered to the Administrative Agent except as set forth on Schedule 6.1.6;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Amended and Restated Revolving Credit Agreement dated October 23, 2008 among Borrower and Bank of America, N.A., has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(xix) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xix) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement;
(xi) Satisfactory completion by Borrower of the environmental questionnaire provided by the Administrative Agent; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Sl Industries Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) (I) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects, except for representations and warranties which (A) specifically refer to an earlier date which shall have been true and correct in all material respects as of the Closing Datesuch earlier date referred to therein, except to the extent such representations and warranties (B) are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in materiality which case they are will be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, (y) the Loan Parties are in compliance with ERISA and applicable labor laws, and (yz) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the date of the Closing Date in substantially last audited financial statements of the form Borrower delivered to the Administrative Agent; and (II) a certificate of Exhibit 7.3.4.1, showing an Authorized Officer of the sum Borrower as to the solvency of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case Loan Parties taken as a whole after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000by this Agreement;
(iiiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (if applicable) of each Loan Party in each state where organized or qualified to do businesstheir respective states of organization;
(iviii) This Agreement and each of the other Loan Documents signed to be delivered on the Closing Date duly executed by an Authorized Officer of each Loan Party the parties thereto and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date in form and opining as substance acceptable to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate pro forma compliance certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing DateDate for which financial statements have been delivered under the Existing Credit Agreement, signed by an Authorized Officer of DSW▇▇▇▇▇▇▇▇, evidencing pro forma compliance with the financial covenants as of the Closing Date (after giving effect to the transactions occurring on the Closing Date);
(viiivii) All material consents consents, regulatory approvals and licenses required to effectuate the transactions contemplated hereby;
(viii) Absence of (A) any legal or regulatory prohibitions or restrictions in connection with the transactions contemplated hereby and (B) any action, suit, investigation, or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Official Body that could reasonably be expect to have a Material Adverse Change;
(ix) Evidence that Absence of any Material Adverse Change from the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedinformation previously delivered to the Administrative Agent in connection with the transactions contemplated hereby;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for each leased Collateral location requested by the fulfillment center and the main distribution center as required under the Security Agreement; andAdministrative Agent;
(xii) Receipt of the Loan Parties’ most recent audited financial statements, prepared in accordance with GAAP;
(xiii) Evidence that the Existing Credit Agreement, and the obligations thereunder have been paid in full and, if applicable, all liens and security interests related thereto shall have been released;
(xiv) Within three (3) Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Beneficial Ownership Certification and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act;
(xv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralstatements;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Borrowing Base Certificate prepared as of the last day Closing Date in substantially the form of Exhibit 8.3.4, showing total undrawn Revolving Credit availability, after giving effect to the Loans and Letters of Credit to be made on the Closing Date (including any Existing Letters of Credit then outstanding), the subtraction of any trade payables over thirty (30) days past due not otherwise on formal extended terms, consummation of the fiscal quarter transactions contemplated hereby and other availability reserves, of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWat least $50,000,000;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xiix) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement;
(x) Acceptable Financial Projections;
(xi) An environmental questionnaire;
(xii) Review of all significant contracts (including Labor Contracts), the terms, conditions and documentation of other Indebtedness of the Loan Parties, transactions with affiliates and the relationship of the Loan Parties with their subsidiaries, litigation, Evidence that Loan Parties are materially in compliance with all pertinent federal, state and local Laws including Environmental Laws, occupational safety and ERISA; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Country Fair Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations the Borrower and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties its Subsidiaries are in compliance with each of the their representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrower delivered to the Administrative Agent, 2010;and no material adverse litigation exists.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of the Borrower and each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;7.1.1.
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;.
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents consents, regulatory approvals and licenses required to effectuate the transactions contemplated hereby;.
(ixviii) Evidence that the Existing Loan Amended and Restated Agreement dated July 2, 2004 among Borrower and PNC Bank and LaSalle Bank National Association, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(ix) A Lien search in acceptable scope and with acceptable results;
(x) Results A Borrowing Base Certificate prepared as of searches or other evidence reasonably the Closing Date in substantially the form of Exhibit 8.3.5, showing total Unused Availability (using current amounts, rather than average amounts, for Loans and Letters of Credit Outstanding), after giving effect to (i) the Loans to be made on the Closing Date, (ii) the Letters of Credit issued and outstanding, and (iii) the consummation of the transactions contemplated hereby, of at least $25,000,000;
(xi) A duly completed solvency certificate, in form and substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably the Closing Date, signed by an Authorized Officer of Borrower;
(xii) A field examination of the Borrower's receivables prepared in connection with the Receivables Purchase Facility which shall be satisfactory to the Administrative Agent, in its sole discretion;
(xiii) indicating No action, proceeding, investigation, regulation or legislation shall have been instituted, or, to the absence knowledge of Liens on the assets any Authorized Officer of the Borrower and any Subsidiary, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, this Agreement, the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or which, in the sole discretion of the Administrative Agent, would make it inadvisable to consummate the transactions contemplated by this Agreement or any of the other Loan Documents;
(xiv) The Administrative Agent and the Lenders shall have completed or shall have caused to be completed, to their satisfaction in form, scope, substance and in all other respects, a due diligence review with respect to the assets, financial condition, operations, business and prospects of the Borrower and each of the other Loan Parties, except for Permitted Liens including a review, without limitation of the books and Liens for which termination records of the Borrower and each of the other Loan Parties, the historical financial statements and releases reasonably satisfactory related Form-10-K filed with the Securities and Exchange Commission for the fiscal year ended December 31, 2006, the financial projections (including income statements) from the Closing Date through the three year anniversary of the Closing Date, and all tax, ERISA, employee retirement benefit, environmental and the contingent liabilities to which the Borrower and any other Loan Party may be subject.
(xv) an executed Company Note (as defined in the Purchase and Sale Agreement) delivered from Strategic Receivables to the Administrative Agent are being tendered concurrently with such extension Borrower pursuant to Section 3.1(b) of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements Purchase and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Sale Agreement; and
(xiixvi) Such such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (v) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent and (z) the Rating of the Borrower by each Rating Agency (provided that no confirmation by the Rating Agencies shall be required);
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each the state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower (which may be in-house counsel with respect to Indiana law), each dated as of the Closing Date and opining as Date, addressed to the matters set forth in Schedule 6.1.1Administrative Agent and each Lender;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material governmental consents required to effectuate the transactions contemplated hereby, including without limitation, the FERC Order and the IURC Order (or certification from the Borrower there are no such consents);
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiivii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (Ipalco Enterprises, Inc.)
Deliveries. (a) On the Closing Date, the Administrative Agent Company shall have received deliver or cause to be delivered to each of Värde Party the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) A certificate of each evidence of the Loan Parties signed by an Authorized Officer number of each Borrowershares of the Exchanged Shares issued to such Värde Party having been issued in book-entry form to such Värde Party;
(ii) evidence that the A&R Series C Certificate of Designation has been filed with, dated and accepted by, the Closing Date stating Secretary of State of the State of Nevada;
(iii) evidence that the A&R Series D Certificate of Designation has been filed with, and accepted by, the Secretary of State of the State of Nevada;
(iv) evidence that the Series E Certificate of Designation has been filed with, and accepted by, the Secretary of State of the State of Nevada;
(v) all representations evidence that the Series F Certificate of Designation has been filed with, and warranties accepted by, the Secretary of State of the Loan Parties set forth in this State of Nevada;
(vi) the Registration Rights Agreement are true duly executed by the Company;
(vii) the Payoff Letter duly executed by the Company and correct in all material respects the other parties thereto (other than the Värde Parties);
(viii) evidence that a number of Underlying Shares at least equal to the Required Minimum has been reserved by the Company and approved, subject to official notice of issuance, for listing on the NYSE American;
(ix) evidence that the Exchanged Common Shares have been approved, subject to official notice of issuance, for listing on the NYSE American;
(x) to the extent not previously delivered to the Värde Parties, the RBL Amendment duly executed by the Company and the other parties thereto;
(xi) a certificate of the Company’s Secretary or another authorized officer of the Company, dated as of the Closing Date, except certifying (A) the Articles of Incorporation and bylaws, as then in effect and attached thereto, (B) the resolutions adopted by the Board of Directors authorizing the transactions contemplated hereby and (C) as to the extent such representations signatures and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each authority of the covenants Persons signing the Transaction Documents and conditions hereunder, (x) no Potential Default or Event related documents on behalf of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010the Company;
(iixii) A Simplified Borrowing Base Certificate prepared a certificate of the Company signed on behalf of the Company by an executive officer and dated as of the Closing Date Date, certifying that the conditions in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby Section 2.4(b) (including repayment of Indebtedness under the Existing Loan Agreement other than clause (including in respect of any outstanding letters of credit issued thereunderiv) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000thereof) have been satisfied;
(iiixiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates opinion from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for in substantially the Loan Partiesform attached hereto as Exhibit G, each which shall be addressed to the Värde Parties and dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vixiv) Evidence that adequate insurance required to an opinion of Nevada counsel, in substantially the form attached hereto as Exhibit H, which shall be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory addressed to the Administrative Agent Värde Parties and its counsel naming dated as of the Administrative Agent as additional insured and lender loss payeeClosing Date;
(viixv) A duly completed Compliance Certificate as payment of the last day Värde Parties’ Transaction Expense Amount, payable by wire transfer of immediately available funds to the fiscal quarter of DSW most recently ended accounts designated by the Värde Parties prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiixvi) Such evidence that the Payoff Amount (as defined in the Payoff Letter) has been received by the applicable parties to which such amount is owed.
(b) On the Closing Date, each Värde Party shall deliver or cause to be delivered to the Company the following:
(i) the Registration Rights Agreement duly executed by such Värde Parties;
(ii) the Payoff Letter duly acknowledged by such Värde Parties and the other documentslenders party thereto;
(iii) a certificate of such Värde Party signed on behalf of such Värde Party by a duly authorized Person and dated as of the Closing Date, instruments and agreements certifying that the conditions in connection with Section 2.4(c) (other than clause (iii) thereof) have been satisfied; and
(iv) a cross-receipt, duly executed by such transactions as Värde Party, acknowledging such Värde Party’s receipt of the Administrative Agent or its counsel may reasonably requestnumber of Exchanged Shares set forth opposite such Värde Party’s name on Schedule I hereto.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects, except for representations and warranties which (A) specifically refer to an earlier date which shall have been true and correct in all material respects as of the Closing Datesuch earlier date referred to therein, except to the extent such representations and warranties (B) are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in materiality which case they are will be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, (y) the Loan Parties are in compliance with ERISA and applicable labor laws, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date in form and opining as substance acceptable to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(vii) The Acquisition Agreement, together with each other document, agreement and instrument relating to the Acquisition, to the extent entered into on or prior to the Closing Date;
(viii) To the extent any portion of the Acquisition is funded from proceeds of the Revolving Credit Loans on the Closing Date, all material governmental, shareholder and third party consents and approvals (including H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance, if required, and all applicable state and local regulatory bodies) necessary to consummate the applicable portion of the Acquisition;
(ix) To the extent any portion of the Acquisition is funded from proceeds of the Revolving Credit Loans on the Closing Date, a pro forma five-year projection model in form acceptable to Administrative Agent of the Target;
(x) Evidence that the Leverage Ratio is not greater than 3.00 to 1.00, such calculation to be made on a pro forma basis after giving effect to the Acquisition;
(xi) All material consents consents, regulatory approvals and licenses required to effectuate the transactions contemplated hereby;
(ixxii) Evidence that Absence of any legal or regulatory prohibitions or restrictions in connection with the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedtransactions contemplated hereby;
(xxiii) Results Absence of searches or other evidence reasonably satisfactory any Material Adverse Change from the information previously delivered to the Administrative Agent in connection with the transactions contemplated hereby;
(in each case dated as xiv) To the extent that the Project Cologne Acquisition is funded from proceeds of a date reasonably satisfactory to the Administrative Agent) indicating Revolving Credit Loans on the Closing Date, the absence of Liens on any “Material Adverse Effect” as defined in the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeProject Cologne Acquisition Agreement;
(xixv) A Lien search in acceptable scope and with acceptable results;
(xvi) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement; and;
(xiixvii) Receipt of the Loan Parties’ most recent audited financial statements, prepared in accordance with GAAP;
(xviii) Evidence that any existing credit agreements, and the obligations thereunder have been paid in full and, if applicable, all liens and security interests related thereto shall have been released;
(xix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the such Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Party is in compliance with each of the its respective representations, warranties, covenants and conditions hereunder, (x) or in the case of Hallador, under this Agreement and the Guaranty, and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change has occurred and no material litigation exists since January 30December 31, 2010;2011.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;7.1.1.
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral.
(viivi) A duly completed Compliance Certificate closing date compliance certificate dated as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower which includes satisfactory evidence that the ratio of Consolidated Funded Debt of the Borrower to Consolidated EBITDA as of June 30, 2012 does not exceed 2.75 to 1.00;
(viiivii) All material consents consents, approvals and licenses required to effectuate the transactions contemplated hereby;.
(ixviii) Evidence that All lessor consents allowing for, among other things, a Lien to be obtained upon any lease of the Existing Loan Agreement has been terminatedBorrower of the Real Property, from the lessors of such lease, as required by the Administrative Agent, in its sole discretion, to have such consents, which such consents shall be in form and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory substance acceptable to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request"Lessor Consents").
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except (or in all respects with regard to the extent such representations and warranties are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects), (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Parent delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;party thereto; DMFIRM #404836892 v17 83
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date Date, in form and opining as substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Parent most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWthe Parent, demonstrating compliance with the financial covenants herein;
(vii) Quarterly financial statements for the most recently completed fiscal quarter of the Parent for which such statements are available (and if the financial statements for the fiscal quarter ending September 30, 2018 are not available, financial statements for the month ending August 31, 2018), all in reasonable detail and certified by an Authorized Officer of the Parent;
(viii) Reserved;
(ix) All material consents consents, regulatory approvals and licenses required to effectuate effectuate, and confirmation of an absence of any legal or regulatory prohibition with respect to, the transactions contemplated hereby;
(ixx) Evidence that each of the Existing Loan Agreement Credit Facilities described on Schedule 7.1.1(x) has been terminated, and all outstanding obligations thereunder have been paid and all Liens (if any) securing such obligations have been released;
(xxi) Results Such Uniform Commercial Code and tax searches as shall be requested by the Administrative Agent, with results reasonably acceptable to the Administrative Agent;
(xii) To the extent required under applicable law, an executed Certificate of searches or other evidence reasonably satisfactory Beneficial Ownership for each Borrower, in form and substance acceptable to the Administrative Agent (and each Lender, and such other documentation and other information requested in each case dated as of a date reasonably satisfactory to connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;USA Patriot Act.
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A (a) this Agreement, executed and delivered by the Administrative Agent, the Lenders and the Borrower, (b) the Notes executed and delivered by the Borrower, (c) the Guarantee and Collateral Agreement, executed and delivered by the Borrower, Holdings and each other Guarantor, (d) an Acknowledgement and Consent in the form attached to the Guarantee and Collateral Agreement, executed and delivered by each Issuer (as defined therein), if any, that is not a Loan Party and (e) the completed Perfection Certificate executed and delivered by the Borrower and the other Loan Parties;
(a) the Pro Forma Balance Sheet, (b) audited consolidated financial statements of the Borrower for the fiscal year ending December 31, 2009, (c) unaudited consolidated financial statements of the Borrower for each fiscal quarter ended after the latest fiscal year referred to in clause (b) above through the fiscal quarter ended September 30, 2010 and thereafter, as such financial statements are available, and unaudited consolidated financial statements for the same period of the prior fiscal year and (d) to the extent available to management prior to the Closing Date, monthly financial data generated by the Borrower’s internal accounting systems for use by senior and financial management for each month after the latest fiscal quarter for which financial statements have been received pursuant to clause (b) above;
(iii) evidence that all governmental and third party approvals necessary in connection with the continuing operations of the Group Members and the transactions contemplated hereby shall have been obtained and be in full force and effect;
(iv) results of a recent lien search in each jurisdiction where a Loan Party is organized and where a Loan Party maintains its chief executive office, and such searches shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 7.2.2 or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent;
(v) received all fees required to be paid to the Administrative Agent and the Lenders, and all expenses required to be reimbursed for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date;
(vi) evidence reasonably satisfactory to it that the Existing Credit Agreement has been terminated and all amounts then due and payable thereunder have been satisfied in full and all Liens securing the Indebtedness thereunder have been released;
(vii) executed legal opinions from ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the other Loan Parties in each case covering such matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require;
(a) the certificates representing the certificated shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (b) each promissory note (if any) pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof;
(ix) each document (including any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.2.2), shall be in proper form for filing, registration or recordation;
(x) insurance certificates satisfying the requirements of Section 5.2(b) of the Guarantee and Collateral Agreement;
(xi) a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct (x) in the case of representations and warranties qualified by materiality, in all respects and (y) otherwise, in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Event of Default or Event of Potential Default exists, and (yd) no Material Adverse Change Effect has occurred since January September 30, 2010;
(iixii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all corporate action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers of such Loan Party authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each the state where organized or qualified to do businessorganized;
(ivxiii) This Agreement a solvency certificate from the chief financial officer of Holdings and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentsBorrower, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory acceptable to the Administrative Agent;
(xiv) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases a pro forma compliance certificate in a form reasonably satisfactory acceptable to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementAgent; and
(xiixv) Such such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, hereunder and under the Loan Documents and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent and (z) the conditions stated in this Section 7.1 and Section 7.2 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cD) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock the parties thereto;
(iv) Appropriate transfer powers and stock or other certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion Written opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Delaware and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWB▇▇▇▇▇▇▇;
(viii) All material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(x) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Lien searches in acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and[reserved];
(xii) Such other documents, instruments A certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xiii) The Statements and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.Projections; 74
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing including a pledge of all Collateral Documents as may be necessary to reflect valid of the equity in Hourglass Sands and perfected first priority Liens in the Collateral;High Point.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;7.1.1.
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral.
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material consents consents, approvals and licenses required to effectuate the transactions contemplated hereby;.
(vii) All lessor consents allowing for, among other things, a Lien to be obtained upon any lease of the Borrower of the Real Property, from the lessors of such lease, as required by the Administrative Agent, in its sole discretion, to have such consents, which such consents shall be in form and substance acceptable to the Administrative Agent (the "Lessor Consents").
(viii) To permit the refinancing by the Lenders of the loans outstanding under the 2014 Credit Agreement, (1) the Borrower shall request Loans in an amount sufficient to refinance the loans under the 2014 Credit Agreement by delivering to the Administrative Agent an appropriately completed irrevocable Loan Request not later than 11:00 a.m., on the first Borrowing Date (which shall be the Closing Date) pursuant to which Loans (to which the Base Rate Option applies) are requested; and (2) contemporaneously with the execution and effectiveness of this Agreement and utilizing a portion of the proceeds of the Loans, the Borrower shall pay in full all amounts outstanding under the 2014 Credit Agreement, including all unpaid principal, interest, breakage fees and all other fees and charges thereunder in order to accomplish the amendment and restatement thereof as of the Closing Date. Each Lender that was a bank under the 2014 Credit Agreement, by execution of this Agreement, waives all notice of prepayment of loans and all notice of termination of the commitments under the 2014 Credit Agreement, and consents to such termination and prepayment. In the event that the Borrower submits a Loan Request hereunder, then the Borrower agrees to indemnify the Lenders for any and all liabilities, losses, or expenses arising therefrom in accordance with the standards set forth in Section 5.10 [Indemnity], regardless of whether this Agreement has become effective.
(ix) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;with acceptable results.
(x) Results of searches Evidence that after giving effect to the transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity (or other evidence reasonably security available for the issuance of permits, including without limitation, letters of credit) to conduct its operations as contemplated in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent.
(xi) Evidence that all of Required Mining Permits with respect to the Loan Parties are in full force and effect in accordance with their terms.
(xii) Audited financial statements of Borrower for the fiscal year ended December 31, 2017, prepared in accordance with GAAP and consolidating schedules for the balance sheet, statement of income, retained earnings and cash flow of the Borrower certified (subject to normal year-end audit adjustments and without footnotes) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, all as more fully described in Section 8.3.2 [Annual Financial Statements].
(xiii) The projected pro-forma financial projections (including balance sheets and statements of operations and cash flows) of the Borrower for each fiscal year from 2018 through 2021, which shall be satisfactory to the Administrative Agent (including all assumptions).
(xiv) Completion of all necessary FEMA flood zone diligence requirements.
(xv) Satisfactory completion and receipt of all third-party due diligence items, including, but not limited to the Energy Ventures Market Study, each in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent.
(xvi) indicating the absence An Authorized Officer of Liens on the assets of the each Loan PartiesParty, except for Permitted Liens acting in their capacities as such officers, shall have delivered a certificate in form and Liens for which termination statements and releases reasonably substance satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory as to the capital adequacy and solvency of each Loan Party after giving effect to the transactions contemplated hereby.
(xvii) A review of the amount and nature of all tax, ERISA, employee retirement benefit, environmental and all other contingent liabilities to which the Loan Parties may be subject.
(xviii) The Administrative Agent for and each Lender shall have received, in form and substance acceptable to Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the delivery of such termination statements and releases have been made;USA Patriot Act.
(xixix) An executed Collateral Access Agreement or other lien waiver agreement from A duly completed Compliance Certificate dated as of the lessor, or other applicable Person for Closing Date pursuant to which Borrower certifies that it shall be in compliance on a Pro Forma Basis with the fulfillment center covenants contained in Section 8.2.15 [Minimum Debt Service Coverage Ratio] and Section 8.2.16 [Maximum Leverage Ratio] upon the main distribution center as required under closing and funding of the Security Agreement; andLoans hereunder.
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Parent signed by an Authorized Officer of each Borrowerthe Parent, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xb) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each its state where organized or qualified to do businessof organization;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date for the benefit of the Administrative Agent and opining as to the matters set forth in Schedule 6.1.1each Lender;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeAgent;
(vi) UCC Lien Searches with respect to each Loan Party in their respective jurisdictions of formation;
(vii) Evidence that all Indebtedness not permitted under Section 8.2.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens (other than Permitted Liens) have been filed or satisfactory arrangements have been made for such filing (including payoff letters, if applicable, in form and substance reasonably satisfactory to the Administrative Agent);
(viii) The Statements and the Projections;
(ix) A duly completed Compliance Certificate certificate prepared as of the last day Closing Date in substantially the form of Exhibit 7.1.1(A) (the fiscal "Closing Compliance Certificate"), showing pro forma trailing four (4) quarter (a) Leverage Ratio of DSW most recently not greater than 3.25 to 1.00 and (b) Interest Coverage Ratio of not less than 2.50 to 1.00, in each case for the period ended prior to the Closing Dateas of September 30, signed by 2013;
(x) A certificate of an Authorized Officer of DSWthe Parent in the form of Exhibit 7.1.1(B) hereto as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(viiixi) All material consents required to effectuate the transactions contemplated hereby;
(ixxii) Evidence that Copies of all intercompany instruments and leases reflecting legend required by the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedterms of the Intercompany Subordination Agreement;
(xxiii) Results of searches or All documentation and other evidence reasonably satisfactory to information required by bank regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA Patriot Act; and
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January September 30, 20102020 (and the Administrative Agent and Required Lenders shall not have otherwise determined) and (z) the conditions stated in this Section 7.1 and Section 7.2 [Each Loan or Letter of Credit] (other than conditions in the control of the Administrative Agent or any of the Lenders or that require documents or conditions to be satisfactory to the Administrative Agent or any of the Lenders) have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iviii) This this Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer the parties thereto;
(iv) written opinion(s) of each counsel for the Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentsParties addressed to the Administrative Agent, instruments and agreements evidencing the pledged CollateralLenders, and evidence of filing of all Collateral Documents as may be necessary the Issuing Lender, dated the Closing Date and in form and substance reasonably satisfactory to reflect valid and perfected first priority Liens in the CollateralAdministrative Agent;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payeepayee to the extent required by the Administrative Agent;
(viivi) A duly completed a Compliance Certificate completed on a pro forma basis after giving effect to this Agreement and the borrowing of the initial Loans and/or issuance of the initial Letters of Credit, if any, hereunder, as of the last day of Closing Date (provided that the fiscal quarter of DSW most recently ended prior to the Closing DateFixed Charge Coverage Ratio need not be reported), signed by an Authorized Officer of DSWthe OP Borrower;
(vii) reasonably satisfactory evidence that the Spin-Off Transaction was consummated on or prior to the date hereof on terms consistent in all material respects with the Spin-Off Transaction Documents;
(viii) All reasonably satisfactory evidence that all material consents consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party are in full force and effect and no other is so required or necessary;
(ix) evidence that all Indebtedness not permitted under Section 9.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens (other than Permitted Liens) have been filed or satisfactory arrangements have been made for such filing (including payoff letters, if applicable, in form and substance reasonably satisfactory to effectuate the Administrative Agent);
(x) lien searches in acceptable scope and with acceptable results, as reasonably determined by the Administrative Agent;
(xi) with respect to each Collateral Pool Property, each of the Collateral Pool Property Deliverables;
(xii) a certificate of an Authorized Officer of the OP Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to this Agreement, the transactions contemplated to occur on the Closing Date and the initial Loans and Letters of Credit, if any, hereunder;
(xiii) a Borrowing Base Certificate showing the total unused Revolving Credit availability, after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby;
(ixxiv) Evidence that the Existing Loan Agreement has been terminated, Statements and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedthe Projections;
(xxv) Results (i) the absence of searches any Material Adverse Change in the financial condition of the REIT Guarantor, the OP Borrower or the other evidence reasonably satisfactory Loan Parties and from the information previously delivered to the Administrative Agent in connection with the transactions contemplated hereby, (in each case dated as of a date reasonably satisfactory to the Administrative Agentii) indicating the absence of Liens on any material disruption of financial or capital markets and (iii) the assets absence of any materially adverse litigation affecting the Loan Parties or the closing of this Agreement;
(xvi) a satisfactory review of the financial condition of the Loan Parties, except for Permitted Liens Parties and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeCollateral Pool Properties;
(xixvii) An an executed Collateral Access Agreement or Certificate of Beneficial Ownership for each Borrower and such other lien waiver agreement from documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA PATRIOT Act; and
(xiixviii) Such such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Aimco OP L.P.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Company signed by an Authorized Officer of each Borrowerthe Company, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default exists, or Potential Default exists and (yD) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Consolidated Subsidiaries which could reasonably be expected to have a Material Adverse Change has occurred since January 30, 2010Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Director of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (or foreign jurisdictional equivalent in each jurisdiction where such certification is required) of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion Opinions of counsel for each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPthe Borrowers, counsel for dated the Loan PartiesClosing Date, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory acceptable to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeLenders;
(viiv) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Company most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Company;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ixvi) Evidence that the Existing Loan Credit Agreement dated as of December 29, 2006 among the Borrowers, the other foreign borrowers a party thereto, the lenders a party thereto and PNC, as successor in interest to National City Bank, as administrative agent, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(xvii) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the completed and executed Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement Request from the lessor, or other applicable Person for Borrowers in substantially the fulfillment center form of Exhibit 2.5.1 [and Swing Loan Request from the main distribution center as required under Borrowers in substantially the Security Agreementform of Exhibit 2.5.2]; and
(xiiviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act.
Appears in 1 contract
Sources: Revolving Credit Facility (RPM International Inc/De/)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and each of which (unless otherwise specified) shall be original copies or telecopies promptly followed by original copies:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (yw) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrower delivered to the Administrative Agent, 2010(x) the conditions stated in both Section 7.1 and 7.2 have been satisfied, (y) there has been no material adverse change from any certificate, report, statement, agreement or other document or other written information previously supplied to the Administrative Agent and the Arrangers furnished by or on behalf of the Borrower in connection with the transactions contemplated by this Agreement or the other Loan Documents and (z) all material consents, licenses and approvals required for the delivery and performance by the Borrower of any Loan Document and the enforceability of any Loan Document against the Borrower is in full force and effect and none other is so required or necessary; provided that any increase of the Commitments in accordance with Section 2.11 [Increase in Revolving Credit Commitments] or the extension of any Expiration Date in accordance with Section 2.12 [Extension of Expiration Date] may require appropriate governmental or third party authorization thereof prior to the effectiveness of such increase or such extension, as the case may be;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with the Borrower to validly authorize, duly execute and deliver this 161957986_3 Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) attaching copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches resolution or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit corporate or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeorganizational action;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing DateAt Closing, the Administrative Agent Company shall have received each deliver the following items to the Investor, against payment of the following in form and substance reasonably satisfactory to Subscription Price (after deducting the Administrative AgentDeposit) by the Investor:
(a) (i) A certificate of each a copy of the Loan Parties signed by an Authorized Officer register of each Borrower, dated the Closing Date stating that (v) all representations and warranties members of the Loan Parties set forth in this Agreement are true and correct in all material respects applicable Group Company as at the date of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans transactions contemplated hereby, certified by a director of the respective Group Company to be made a true and complete copy thereof, (ii) a copy of the register of directors of the applicable Group Company as at the date of the Closing, certified by a director of the applicable Group Company to be a true and complete copy thereof, and (iii) a table showing the capitalization of the Company on a fully-diluted basis immediately after the Closing;
(b) duly issued share certificate(s) to the Investor representing the Shares subscribed for by the Investor in the Closing;
(c) a compliance certificate dated on the Closing Date signed by each Warrantor or a duly authorized representative of each Warrantor, as applicable, satisfactory to the Investor and consummation its counsel certifying that all of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including conditions set forth in respect of any outstanding letters of credit issued thereunder) Section 7 have been fulfilled, and payment of fees attaching and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date certifying as true and signed by the Secretary or an Assistant Secretary of each complete a copy of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Company’s Memorandum and the other Loan Documents; (b) the names Articles of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Association as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDate;
(ivd) This Agreement a certificate of good standing issued by the Registrar of Companies of the Cayman Islands dated no earlier than fifteen (15) Business Days prior to the Closing certifying that the Company has been duly incorporated, has paid all required fees and taxes, and is validly existing and in good standing under the laws of the Cayman Islands;
(e) a certificate of good standing or its equivalent issued by the relevant authority in the place of incorporation of each of the other Loan Documents signed by an Authorized Officer Global Market Subsidiaries, if applicable, dated no earlier than fifteen (15) Business Days prior to the Closing certifying that each of each Loan Party the Global Market Subsidiaries, as the case may be, has been duly incorporated, has paid all required fees and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateraltaxes, and evidence is validly existing and in good standing under the laws of filing its place of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralincorporation;
(vf) A written a legal opinion of each the Company’s Cayman Islands counsel covering, among other things, the capitalization of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP the Company and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPthe amendments to the constitutional documents of the Company, reasonably satisfactory to the Investor and its legal counsel for the Loan Partiesin form and substance, each dated as of on the Closing Date and opining as addressed to the matters set forth in Schedule 6.1.1Investor;
(vig) Evidence that adequate insurance required a legal opinion of the Company’s Hong Kong counsel covering, among other things, the establishment of the HK Subsidiary, the Stage One Reorganization and the Stage One Restructuring Agreements, reasonably satisfactory to the Investor and its legal counsel in form and substance, dated on the Closing Date and addressed to the Investor;
(h) a legal opinion of the Company’s PRC counsel covering, among other things, the establishment of the PRC Subsidiary, reasonably satisfactory to the Investor and its legal counsel in form and substance, dated on the Closing Date and addressed to the Investor;
(i) unaudited consolidated balance sheets and profit and loss statements of the Group Companies for the year ended December 31, 2005 and unaudited consolidated balance sheets and profit and loss statements of the Group Companies for the period ended June 30, 2006, which shall be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto satisfactory in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementInvestor; and
(xiij) Such other documentsBoard and members resolutions of the applicable Group Companies, instruments as appropriate, each certified by a duly authorized legal representative of the respective Group Company as true and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestcomplete.
Appears in 1 contract
Sources: Subscription Agreement (Ninetowns Internet Technology Group Co LTD)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrowersuch Loan Party, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Daterespects; provided, except however, that to the extent any such representations and warranties are modified representation or warranty is already qualified by “materiality” materiality or “Material Adverse Change” , such representation or words of similar import, in which case they are warranty shall be true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and other conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do and in a state listed on Schedule 6.1.1 where such Loan Party maintains a principal place of business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Collateral Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of for the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, Loan Parties signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate Borrower setting forth pro forma compliance with the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, financial covenants set forth in Section 8.2.14 [Minimum Interest Coverage Ratio] and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request8.
Appears in 1 contract
Sources: Revolving Credit Facility (Advanced Drainage Systems, Inc.)
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower signed by a Compliance Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated as of the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement or the other Loan Documents are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement or such other Loan Document by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Change shall be true and correct in all respects, as of the Closing Date (wor, if such representation or warranty makes reference to an earlier date, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and the other Loan Documents, (xc) no Potential Default or Event of Default or Default exists, and (yd) there has occurred no Material Adverse Change since December 31, 2022, and (e) each of the Loan Parties has occurred since January 30, 2010satisfied each of the closing conditions required to be satisfied by it hereunder;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized organized;
(iii) evidence that there is no action, suit, proceeding or qualified investigation pending against, or threatened in writing against, any Loan Party or any of its respective Subsidiaries or any of their respective properties, including the Material Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to do businessresult in a Material Adverse Change;
(iv) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any FCC or PUC counsel, if required by the Administrative Agent), dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date; provided, however that no opinion of counsel shall be required for any Loan Parties that are incorporated outside of State of Delaware;
(vi) Evidence subject to Section 6.18, evidence that adequate insurance required to be maintained under this Agreement is in full force and effect;
(vii) a duly completed, executed Loan Request for Credit Extension for each Loan or Letter of Credit requested to be made on the Closing Date, including notice of election as to Interest Periods (if applicable);
(viii) a duly completed, executed Solvency Certificate signed by an Authorized Officer of each the Borrower;
(ix) evidence that all material governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(x) evidence that all outstanding obligations under the Existing Credit Agreement have been paid in full;
(xi) [reserved];
(xii) a Lien search with additional insured respect to the Borrower and lender loss payable endorsements attached thereto each other Loan Party, in form and substance scope satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured with results showing no Liens other than Permitted Liens and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably otherwise satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Joinder, Consent, First Amendment and Reaffirmation Agreement (ATN International, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrowera Responsible Officer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, stating that (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (xy) no Potential Default or Event of Default existsthe conditions stated in this Section 7.1 have been satisfied, and (yz) no Material Adverse Change has occurred since January 30certifying as to compliance with the requirements of clauses (c), 2010(d), and (e) of this Section 7.1;
(ii) A Simplified Borrowing Base Certificate prepared certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary a Responsible Officer of each of the Loan Parties, certifying as appropriate as to: (ax) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (by) the names names, authority and capacity of the Authorized Responsible Officers authorized to sign the Loan Documents and their true signatures; and (cz) copies of its organizational documents Organization Documents, in each case, as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iviii) This Agreement, the First Lien Intercreditor Agreement, the Security Agreement, the Guaranty Agreement and each of the other Loan Documents signed Documents, in each case, duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateralapplicable parties thereto, and shall have become effective, and the Administrative Agent shall have received evidence satisfactory to it of filing of all Collateral Documents as may be necessary to reflect valid such execution and perfected first priority Liens in delivery and effectiveness;
(iv) The Existing Credit Agreement Amendment, duly executed by the CollateralBorrowers, the guarantors party thereto, the lenders party thereto and PNC Bank;
(v) A written opinion The LSP Acquisition Agreement, duly executed by Construction Partners, the Target and the individual sellers party thereto;
(vi) Written opinions of each of (x) ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, as Delaware, Texas and North Carolina counsel for the Loan Parties and (y) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP PC, as Alabama, Florida, Georgia and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, South Carolina counsel for to the Loan Parties, in each dated case, as of the Closing Date and opining as Date, addressed to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force Administrative Agent and effect, with additional insured the Lenders and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeAgent;
(vii) A duly completed Compliance Certificate All material consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by a Responsible Officer that each is in full force and effect and none other is so required or necessary;
(viii) Other than as set forth in Section 8.20(g), evidence that, prior to or substantially simultaneously with the funding of the last day Closing Date Loans on the Closing Date, (a) all Indebtedness not permitted under Section 9.2 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens (other than Permitted Liens) have been filed or satisfactory arrangements have been made for such filing (including payoff letters, if applicable, in form and substance reasonably satisfactory to the Administrative Agent), and (b) the Target Debt Refinancing shall have been consummated;
(ix) (a) the Collateral and Diligence Questionnaire, together with all attachments contemplated thereby, (b) recent Lien, bankruptcy, tax, copyright, patent and trademark and judgment searches in each jurisdiction and/or office reasonably requested by the Administrative Agent with respect to the Loan Parties, (c) proper financing statements (Form UCC-1 or the equivalent) authorized for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Security Agreement, (d) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the fiscal quarter Secured Parties, as an additional insured or loss payee as the case may be, under all insurance policies maintained with respect to the assets and properties of DSW most recently ended the Loan Parties that constitutes Collateral, and (e) other than as set forth in Section 8.20(f), appropriate transfer powers and stock or other certificates evidencing the pledged Collateral referred to in the Security Agreement and then owned by such Loan Parties, along with evidence that all other actions necessary to perfect (to the extent required by the Security Agreement) the security interests in pledged Collateral purported to be created by the Security Agreement have been taken; provided, that the requirements of this clause (ix)(e) shall not apply to any transfer powers and stock or other certificated securities that were previously delivered to and are held by, or are otherwise on the Closing Date delivered to, the Existing Credit Agreement Administrative Agent as Applicable Collateral Agent (as defined in the First Lien Intercreditor Agreement) in accordance with the First Lien Intercreditor Agreement;
(x) A certificate of the chief financial officer of the Borrowing Agent as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement, that is substantially in the form attached hereto as Exhibit I;
(xi) The Statements and the Projections;
(xii) To the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and any Lender delivers a written request to such Loan Party at least five (5) days prior to the Closing Date, signed by an Authorized Officer then the Administrative Agent and the Lenders shall have received at least three (3) days prior to the Closing Date, and be reasonably satisfied in form and substance with, a Certificate of DSWBeneficial Ownership in relation to such Loan Party;
(viiixiii) All material consents required Upon the reasonable request of any Lender made in writing at least five (5) days prior to effectuate the transactions contemplated hereby;
(ix) Evidence that Closing Date, the Existing Loan Agreement has been terminatedBorrowers shall have provided to such Lender, and all outstanding obligations thereunder have been paid such Lender shall be reasonably satisfied with, the documentation and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws, including, without limitation, the Administrative Agent (USA PATRIOT Act, in each case dated as of a date reasonably satisfactory at least three (3) days prior to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementClosing Date; and
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Construction Partners, Inc.)
Deliveries. On the Closing Date, the Administrative Agent Lender shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentLender:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Default or Event of Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Lender;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralstatements;
(iv) [Reserved].
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent Lender and its counsel naming the Administrative Agent Lender as additional insured insured, mortgagee and lender loss payee, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Lender to assist in ensuring that the Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Lender with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Lender, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material consents required to effectuate the transactions contemplated hereby;
(ixvii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(xviii) Results an executed Certificate of searches or other evidence reasonably satisfactory Beneficial Ownership in form and substance acceptable to the Administrative Agent (Lender, and such other documentation and other information requested in each case dated as of a date reasonably satisfactory to connection with applicable "know your customer" and anti-money laundering rules and regulations, including the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA Patriot Act; and
(xiiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent Lender or its counsel may reasonably request.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Facility (Shotspotter, Inc)
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrowera certificate, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing First Restatement Effective Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: to (ai) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; , (bii) the names of the Authorized Officers authorized to sign the Loan Documents this Agreement and their true signatures; signatures and (ciii) copies of its organizational documents Organizational Documents as in effect on the Closing First Restatement Effective Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do business; and
(ii) at least five (5) Business Days prior to the First Restatement Effective Date, (i) all documentation and other information requested by (or on behalf of) any Lender in order to comply with requirements of Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to Borrower.
(iii) a certificate of the Borrower signed by a Compliance Officer of the Borrower, dated as of the First Restatement Effective Date, stating that (a) all representations and warranties of the Loan Parties herein and in the other Loan Documents are true and correct, except such representations and warranties that are not qualified in this Agreement by reference to materiality or a Material Adverse Change are true and correct in all material respects as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty are true and correct in all respects or in all material respect, as applicable, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (c) no Event of Default or Default exists, (d) since April 30, 2018, there has occurred no Material Adverse Change, (e) each of the Loan Parties has satisfied each of the closing conditions required to be satisfied by it hereunder, (f) all material governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs, and (g) there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(iv) This evidence that there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(v) this Agreement and each of the other Loan Documents (including each Mortgage and each other Collateral Document as the Administrative Agent may require) signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(vvi) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local and regulatory counsel required by the Administrative Agent), dated as of the Closing Date and opining as First Restatement Effective Date;
(vii) [reserved];
(viii) a certificate of a Compliance Officer of the Borrower setting forth (A) the calculation, calculated on a pro forma basis for the twelve consecutive month period ending most recently prior to the matters First Restatement Effective Date, of the Net Total Leverage Ratio as of the First Restatement Effective Date after giving effect to the Credit Extension occurring at the time of the First Restatement Effective Date, (B) showing compliance with the financial covenant set forth in Schedule 6.1.1Section 8.1 and (C) setting for a calculation of the Special Project Available Amount as of the First Restatement Effective Date;
(viix) Evidence a duly completed, executed Loan Request for each Loan or request for Credit Extension for each Letter of Credit requested to be made on the First Restatement Effective Date, including notice of election as to Interest Periods (if applicable);
(x) a duly completed, executed Perfection and Diligence Certificate signed by a Compliance Officer of each of the Loan Parties;
(xi) a duly completed, executed Solvency Certificate signed by a Compliance Officer of each of the Loan Parties;
(xii) evidence that adequate insurance all material governmental and third-party consents, subordinations or waivers, as applicable, required to be maintained under this Agreement is effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(xiii) a Lien search with additional insured respect to the Borrower and lender loss payable endorsements attached thereto each other Loan Party, in form and substance scope satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured with results showing no Liens other than Permitted Liens and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably otherwise satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xixiv) An executed Collateral Access true, correct and complete copies of all Material Agreements not already delivered pursuant to the Existing Credit Agreement or other lien waiver another clause of this Section 4.1;
(xv) if requested by the Administrative Agent, an executed landlord agreement from the lessor, warehouse operator or other applicable Person for each leased location with Collateral valued in the fulfillment center aggregate in excess of $1,500,000, subordinating such Person’s Lien in goods stored at that location to the Prior Security Interest of the Administrative Agent and the main distribution center as required under the Security Agreement; and
(xii) Such containing such other documents, instruments terms and agreements in connection with such transactions provisions as the Administrative Agent or its counsel may shall reasonably request.require;
Appears in 1 contract
Sources: Credit Agreement (Alaska Communications Systems Group Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all the representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are Loan Documents shall then be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default existsshall have occurred prior to or will result immediately following the Closing Date and the borrowing of any Loans on the Closing Date, and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of each Borrower delivered to the Administrative Agent (and the Administrative Agent and Required Lenders shall not have otherwise determined) and (z) the conditions stated in this Section 7.1 and Section 7.3 [Each Loan or Letter of Credit] have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock the parties thereto;
(iv) Appropriate transfer powers and stock or other certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee, as applicable;
(vii) A duly completed Compliance Certificate for the Loan Parties as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrowers, determined on a pro forma basis;
(viii) All material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(x) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Lien searches in acceptable scope and Liens for which termination statements and releases with reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An For this clause (xi) only, the Loan Parties shall use commercially reasonable efforts to deliver the following: an executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location, as further required under the Security Agreement;
(xii) The Statements and the Projections;
(xiii) At least five (5) days prior to the Closing Date, the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender such documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(xiv) All legal (including tax implications) and regulatory matters shall be satisfactory to the Administrative Agent and Lenders, including but not limited to compliance with all applicable requirements of Regulations U, T and X of the Board of Governors of the Federal Reserve System. The Administrative Agent’s counsel shall have completed all legal due diligence;
(xv) All governmental and third party approvals necessary in connection with the financing contemplated hereby and the continuing operations of the Borrowers and their Subsidiaries (including shareholder approvals, if any) shall have been obtained on satisfactory terms and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing or any of the transactions contemplated hereby;
(xvi) The corporate structure, capital structure, other debt instruments, material accounts and governing documents of the Borrowers and their affiliates shall be acceptable to the Administrative Agent;
(xvii) No Material Adverse Change shall have occurred from the information previously supplied to the Administrative Agent;
(xviii) The ERISA and labor matters affecting the Borrowers and their Subsidiaries shall be acceptable to the Administrative Agent;
(xix) Each document (including any Uniform Commercial Code financing statement and any IP Security Agreement) required by this Agreement, any related agreement or under law, or reasonably requested by Administrative Agent to be filed, registered or recorded in order to create, in favor of Administrative Agent, a perfected security interest in or lien upon the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested; and
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Company signed by an Authorized Officer of each Borrowerthe Company, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default exists, or Potential Default exists and (yD) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Consolidated Subsidiaries which could reasonably be expected to have a Material Adverse Change has occurred since January 30, 2010Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Director of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (or foreign jurisdictional equivalent in each jurisdiction where such certification is required) of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Opinions of counsel for each Loan Party of the Borrowers, dated the Closing Date, each in form and all appropriate financing statements substance acceptable to the Administrative Agent and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralLenders;
(v) A written opinion completed and executed Loan Request from the Borrowers in substantially the form of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Exhibit 2.5.1;
(vi) All regulatory approvals and licenses necessary for this Agreement shall have been completed and there shall be an absence of any legal or regulatory prohibitions or restrictions;
(vii) Lien searches in acceptable scope and with acceptable results;
(viii) An executed Certificate of Beneficial Ownership for the Foreign Borrower in form and substance acceptable to the Administrative Agent and each Lender, and such other documentation and other information requested by the Administrative Agent or any Lender in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; and
(ix) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing DateDate or such later date as the Administrative Agent may determine in its sole discretion, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, (y) no Acquired Business Material Adverse Effect has occurred since December 31, 2012, and (yz) no Material Adverse Change has occurred since January 30December 31, 20102012;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or and in each jurisdiction where the failure to be qualified to do businessbusiness would result in a Material Adverse Change;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer setting forth pro-forma compliance of DSWthe Borrower and its Subsidiaries on a consolidated basis, after giving effect to the Acquisition and Loans made on the Closing Date (the “Closing Date Compliance Certificate”);
(viiivii) All Evidence of all regulatory approvals, licenses and material consents required to effectuate the transactions contemplated herebyhereby and contemplated by the Acquisition Documents and there shall be an absence of any legal or regulatory prohibitions or restrictions in connection with the same;
(viii) A Lien search in acceptable scope and with reasonably acceptable results;
(ix) Evidence that Pro forma projections for the Existing Loan Agreement has been terminatedfiscal years 2013 through 2017, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedincluding assumptions used in preparing the forecast financial statements;
(x) Results Evidence of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets no environmental liabilities of the Loan Parties, except for Permitted Liens Borrower and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeits Subsidiaries that would result in a Material Adverse Change;
(xi) An executed Collateral Access Evidence of no material litigation of the Borrower and its Subsidiaries that would result in a Material Adverse Change;
(xii) Certified copy of the Acquisition Documents which shall provide for an aggregate purchase price not to exceed $750,000,000; provided that the Acquisition Agreement shall be consistent with the Acquisition Agreement originally provided to the Administrative Agent without any amendment or other lien waiver agreement thereto materially adverse to the Lenders, unless consented to by the Administrative Agent (such consent not to be unreasonably withheld or delayed);
(xiii) Third-party due diligence as it relates to the Acquisition, including a Quality of Earnings Report with respect to the Acquisition;
(xiv) Evidence that the Acquisition is not in connection with a “hostile takeover” or proxy fight or similar transaction;
(xv) Receipt of financial information from the lessor, or other applicable Person Seller for the fulfillment center last three fiscal years of the Seller;
(xvi) Consummation of the Acquisition on terms and conditions as set forth in the main distribution center as required under the Security AgreementAcquisition Documents; and
(xiixvii) Such other documentsAll information for the Loan Parties required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, instruments and agreements in connection with such transactions as including the U.S. Patriot Act, requested by the Administrative Agent (on behalf of itself or any other Lender) or its counsel may reasonably requestcounsel.
Appears in 1 contract
Sources: Credit Agreement (Gentex Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and the Lenders:
(ia) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vi) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xii) no Potential Default or Event of Default exists, (iii) no action, suit, investigation or proceeding is pending or, to the knowledge of any Authorized Officer of the applicable Loan Party, threatened in writing in any court or before any arbitrator or Official Body that could reasonably be expected to have a Material Adverse Effect and (yiv) no Material Adverse Change event or condition has occurred since January 30December 31, 20102018 that has had or could reasonably be expected to have a Material Adverse Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iiib) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (ai) all corporate or other entity action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (bii) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (ciii) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state governmental office together with certificates from the appropriate state governmental officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessits place of organization (if applicable);
(ivc) This Agreement Agreement, the Security Agreement, the Notes and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(vd) A written opinion of each of Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, in each case, dated the Closing Date and as to matters reasonably requested by the Administrative Agent;
(e) A duly completed Compliance Certificate, dated as of the Closing Date Date, and opining as to duly executed and delivered by the matters chief financial officer of the Borrower, evidencing compliance with the financial covenants set forth in Schedule 6.1.1Sections 8.2.14 and 8.2.15 for the fiscal quarter ended September 30, 2018;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiif) All material consents required to effectuate the transactions contemplated hereby and from (i) all relevant Official Bodies and (ii) any other Person whose consent or approval the Lenders deem necessary or appropriate to effect the transactions contemplated hereby;
(ixg) Evidence Satisfactory evidence that all the Indebtedness (and any existing commitments related thereto) under the Existing Loan Agreement has been terminatedCredit Agreement, together with all interest, all prepayment premiums and all outstanding obligations thereunder other amounts due and payable with respect thereto, will have been paid in full upon the making of the initial Loans and all Liens securing such obligations have been releasedwith respect thereto will, concurrently with the making of the initial Loans, be terminated (other than contingent indemnification obligations);
(xh) Results True and correct copies of: (i) annual audited consolidated financial statements of searches the Borrower for each of the last three (3) fiscal years ended more than 90 days prior to the Closing Date, in each case prepared in accordance with GAAP consistently applied and without any “going concern” (or similar qualification) or any qualification or exception as to the scope of audit, by independent certified public accountants of nationally recognized standing, (ii) unaudited consolidated financial statements for any quarterly interim period or period of the Borrower ending more than 45 days prior to the Closing Date, together with unaudited financial statements for the corresponding period of the prior year (all of which shall have been reviewed by the independent accountants for the Borrower as provided in Statement on Auditing Standards No. 100), (iii) customary additional unqualified audited and unaudited financial statements for all recent, probable or pending acquisitions and (iv) at least 30 days prior to the Closing Date, financial projections for the Borrower and its Subsidiaries for the period from the Closing Date through the fiscal year ending on December 31, 2023, prepared on a pro forma basis after giving effect to the transactions contemplated by this Agreement and the other Loan Documents, certified by a financial officer of the Borrower, including consolidated income statements (with Consolidated EBITDA clearly noted), consolidated balance sheets and consolidated cash flow statements, a pro forma schedule of sources and uses and a pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of the Closing Date;
(i) Evidence of the insurance coverage required to be maintained pursuant to Section 8.1.3, together with evidence reasonably satisfactory to that the Administrative Agent has been named as a lender’s loss payee and an additional insured on all related insurance policies;
(in each case dated as j) Original certificates (if any) evidencing all of a date reasonably satisfactory the issued and outstanding Equity Interests required to be pledged pursuant to the Administrative Agent) indicating the absence of Liens on the assets terms of the Security Agreement, which certificates shall be accompanied by undated stock and other powers duly executed in blank by each relevant Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Party;
(k) The original promissory notes (including any master intercompany notes) evidencing intercompany Indebtedness required to be pledged pursuant to the Administrative Agent are being tendered concurrently with such extension terms of credit or other arrangements reasonably satisfactory to the Security Agreement, duly endorsed in blank by each relevant Loan Party in favor of the Administrative Agent for the delivery benefit of such termination statements and releases have been madethe Secured Parties;
(xil) An executed Collateral Access Agreement Uniform Commercial Code financing statements naming the Borrower and each of the other Loan Parties, as the case may be, as the debtor and the Administrative Agent as secured party, such Uniform Commercial Code financing statements to be filed under the Uniform Commercial Code of all applicable jurisdictions as may be necessary or other lien waiver agreement from appropriate to perfect the lessor, or other applicable Person first priority security interest of the Administrative Agent for the fulfillment center and benefit of the main distribution center as required under Secured Parties pursuant to the Security Agreement;
(m) Delivery of appropriate trademark, copyright and patent security agreements or supplements to be filed with the United States Patent and Trademark Office and United States Copyright Office to the extent relevant;
(n) [Reserved];
(o) Satisfactory Uniform Commercial Code or similar search reports for the applicable jurisdiction, federal, state or other tax Liens, judgment, litigation and bankruptcy reports dated a date reasonably near (but prior to) the Closing Date, listing all effective Uniform Commercial Code or similar financing statements, federal, state or other tax Liens, and judgment Liens which name the Borrower or any other Loan Party, as the debtor, and pending litigation and bankruptcies against the Borrower or any other Loan Party, and which are filed or pending, as applicable, in each jurisdiction in which Uniform Commercial Code or similar filings are to be made pursuant to this Agreement or the other Loan Documents and any other appropriate jurisdictions, together with copies of such financing statements (none of which (other than any Permitted Liens and Liens to be terminated on or prior to the Closing Date) shall cover any of the Collateral);
(p) Search results from the United States Patent and Trademark Office and United States Copyright Office to the extent any patents, trademarks or copyrights form a part of the Collateral;
(q) A solvency certificate duly executed by a financial officer of the Borrower on behalf of the Borrower and each other Loan Party, dated the Closing Date;
(r) An IRS Form W-8 or W-9 duly executed by an Authorized Officer of the Borrower; and
(xiis) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (3d Systems Corp)
Deliveries. On 6.1 Items to be delivered to InterMetro prior to or at Closing by the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:Company.
(ia) A Certificate of Incorporation and amendments thereto, By-laws and amendments thereto, certificate of each good standing in the Company’s state of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010incorporation;
(iib) A Simplified Borrowing Base Certificate prepared as all minutes and resolutions of board of director and shareholder meetings in possession of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Company;
(iiic) A certificate dated the Closing Date all financial statements and signed by the Secretary or an Assistant Secretary of each all tax returns in possession of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessCompany;
(ivd) This Agreement resolutions from the Company’s Board appointing ▇▇▇▇▇▇▇ ▇▇▇▇ as a director, the Chief Executive Officer and each President of the other Loan Documents signed by an Authorized Company on the Closing, ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Chief Financial Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentsthe Company on the Closing, instruments and agreements evidencing ▇▇▇ ▇▇▇▇▇ as the pledged CollateralChief Technology Officer of the Company on the Closing, and evidence of filing of all Collateral Documents as may be necessary to reflect valid ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as directors of the Closing Date Company effective on the expiration of the ten day time period following the mailing of a Form 14f-1 to shareholders and opining as to filing of a Form 14f-1 with the matters set forth in Schedule 6.1.1Securities and Exchange Commission;
(vie) Evidence that adequate insurance required to be maintained under resolutions from the Company’s Board, and if applicable, shareholder resolutions approving this Agreement is in full force transaction and effect, with additional insured authorizing the issuances of the Exchange Shares and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeExchange Warrants hereunder;
(viif) A duly completed Compliance Certificate as letters of resignation from the Company’s current officers to be effective upon Closing and after the appointments described in this section and letters of resignation from the Company’s current directors to be effective on the expiration of the last ten day time period following the mailing of a Form 14f-1 to shareholders and filing of a Form 14f-1 with the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWSecurities and Exchange Commission;
(viiig) All material consents required to effectuate any other document reasonably requested by InterMetro that it deems necessary for the consummation of the transactions contemplated hereby;; and
(ixh) Evidence that evidence of the Existing Loan Agreement has been terminated, and all cancellation of 5,210,000 shares of the Company’s outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;common stock.
6.2 Items to be delivered by the Company to the InterMetro Investor.
(xa) Results of searches or other evidence reasonably satisfactory a certificate representing the Exchange Shares to be delivered within forty business days after the Administrative Agent (in each case dated as of a date reasonably satisfactory Closing, unless otherwise set forth on Schedule I to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security this Agreement; and
(xiib) Such other documentsa warrant representing the Exchange Warrants, instruments if applicable, to be delivered within forty business days after the Closing, unless otherwise set forth on Schedule I to this Agreement.
6.3 Items to be delivered to the Company prior to or at Closing by InterMetro and agreements the InterMetro Investor.
(a) duly executed stock powers in connection with such transactions respect of the InterMetro Common Stock endorsed for transfer to the Company, duly executed stock powers in respect of the InterMetro Series B Stock endorsed for transfer to the Company, note evidencing the Note, and Warrant endorsed for transfer to the Company, as the Administrative Agent or its counsel case may be; and
(b) any other document reasonably requestrequested by the Company that it deems necessary for the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Exchange Agreement (Lucys Cafe Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default or Potential Default exists, and (yD) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent; and (E) there are no actions, 2010;suits, proceedings or investigations pending or, to the knowledge of any Loan Party, threatened against such Loan Party at law or in equity before any Official Body which individually or in the aggregate constitute a Material Adverse Change.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrowers;
(vii) All consents and regulatory approvals and licenses necessary to effectuate the transactions contemplated hereby shall have been completed and there shall be an absence of any legal or regulatory prohibitions or restrictions;
(viii) All material consents required Evidence that the loans under the existing credit agreement dated September 29, 2009 and other obligations thereunder shall have been paid or will be repaid in full with the proceeds of the initial Loans advanced pursuant to effectuate the transactions contemplated herebythis Agreement;
(ix) Evidence that Amendments to the Existing Loan Agreement has been terminatedPatent, Trademark and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedCopyright Security Agreements, as may be requested by the Administrative Agent;
(x) Results Pro forma projections (including a pro forma balance sheet and statements of searches or other evidence reasonably satisfactory to operation and cash flows) for the Administrative Agent fiscal years 2013 through 2017 (with projections through fiscal year-end 2013 performed on a quarterly basis), including assumptions used in each case dated as preparing the forecast financial statements, all of a date reasonably which shall be in form and substance satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from A Lien search in acceptable scope and with acceptable results;
(xii) Execution and delivery to the lessor, or other applicable Person for Administrative Agent of the fulfillment center and the main distribution center as required under the Security Intercreditor Agreement; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (v) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;the date of the last audited financial statements of the Borrower delivered to the Administrative Agent and (z) the Rating of the Borrower by each Rating Agency (provided that no confirmation by the Rating Agencies shall be required).
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each the state where organized or qualified to do business;
organized; (iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
Officer; (viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower (which may be in- house counsel with respect to Indiana law), each dated as of the Closing Date and opining as Date, addressed to the matters set forth in Schedule 6.1.1;
Administrative Agent and each Lender; (viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
; (vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material governmental consents required to effectuate the transactions contemplated hereby;
, including without limitation, the FERC Order and the IURC Order (ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement certification from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementBorrower there are no such consents); and
(xiivii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On Subject to Section 8.1.15 [Post-Closing Requirements], on the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vx) all each of the representations and warranties of the Loan Parties set forth in Article 6 [Representations and Warranties] of this Agreement are true and correct in all material respects (without duplication of any materiality qualifiers contained therein) as of the Closing Date, Date (except to the extent such representations and warranties are modified by “materiality” which relate solely to an earlier date or “Material Adverse Change” or words of similar importtime, in which case they are representations and warranties shall be true and correct in all respectson and as of the specific dates or times referred to therein), (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) since December 31, 2018, no Material Adverse Change has occurred since January 30, 2010occurred;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Domestic Loan Parties, or the equivalent authorized signatory for the Foreign Borrower and Exploit BV (which for the purposes of this sub-clause (ii) shall be included in the definition of Loan Party), certifying as appropriate as to: (a) all action taken the true and complete copy of resolutions duly adopted by each the board of directors of such Loan Party (or its managing general partner, managing member or equivalent) and, if required, shareholders of such Loan Party, authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in connection with this Agreement the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the other Loan DocumentsClosing Date; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with with, to the extent available in the relevant jurisdiction, certificates from the appropriate state officials as to the continued existence and good standing of each such Loan Party in each (i) the state where such Loan Party is organized and (ii) in all other jurisdictions where the property owned or qualified leased by such Loan Party or the nature of the business transacted by it or both makes such licensing or qualification necessary, except as to this clause (ii) where failure to do businessso would not reasonably be expected to result in a Material Adverse Change and (d) to the extent required, a copy of the positive works council advice and the request for advice in relation to each of the Foreign Borrower and Exploit BV;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer and to the extent required under applicable requirements of each Loan Party and all Law, appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral;
(iv) Written opinions of counsel (including local counsel) for the Loan Parties (or, and evidence of filing of all Collateral Documents as may be necessary in relation to reflect valid and perfected first priority Liens in the CollateralDutch Pledge Agreements, counsel for the Administrative Agent), dated the Closing Date;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and or lender loss payable endorsements endorsements, as applicable, attached thereto in form and substance reasonably satisfactory to the Administrative Agent demonstrating compliance with the requirements set forth in Section 8.1.3 [Maintenance of Insurance];
(vi) Uniform Commercial Code financing statements in appropriate form for filing under the Uniform Commercial Code and its counsel naming such other documents under applicable requirements of Law in each jurisdiction as may be necessary or appropriate, or, in the Administrative Agent as additional insured reasonable opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Collateral Documents. All certificates, agreements or instruments representing or evidencing the pledged securities accompanied by instruments of transfer and lender loss payeestock powers undated and endorsed in blank have been delivered to the Collateral Agent;
(vii) A duly completed Compliance Certificate evidencing pro forma compliance with the Financial Covenants as of the last day of the fiscal quarter of DSW most recently Parent ended prior to the Closing DateMarch 31, 2019, signed by an Authorized Officer of DSWParent;
(viii) All material consents required to effectuate the transactions contemplated herebyLien searches in acceptable scope and with acceptable results;
(ix) Evidence that A perfection certificate, in form and substance reasonably acceptable to the Existing Administrative Agent, executed and delivered on behalf of the Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedParties by an Authorized Officer of each Loan Party;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (Evidence, in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases that since December 31, 2018 there shall not have occurred any change, development or event that has or would reasonably satisfactory be expected to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;cause a Material Adverse Change; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessorPro forma projections (including a pro forma closing balance sheet, or other applicable Person pro forma statements of operations and cash flow) for the fulfillment center and fiscal years 2019 through 2023, including assumptions used in preparing the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestforecast financial statements.
Appears in 1 contract
Sources: Credit Agreement (Stoneridge Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct (A) in the case of representations and warranties qualified by materiality, in all respects and (B) in the case of other representations and warranties, in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default exists, or Potential Default exists and (yd) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official Official Body where such documents are filed in a state office with an Official Body together with certificates from the appropriate state officials Official Body as to the continued existence and good standing of each Loan Party in each state jurisdiction where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion The executed legal opinions of each of ▇(a) O▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇Frome W▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date Date, (b) Q▇▇▇▇▇▇ & B▇▇▇▇ LLP, Wisconsin local counsel for the Loan Parties, dated the Closing Date, and opining as (c) S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Canadian local counsel for the Loan Parties, dated the Closing Date, in each case in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent for the benefit of the Secured Parties as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, form FRU-1 signed by an Authorized Officer of DSWOfficer;
(viiivii) All material consents consents, regulatory approvals and licenses required to effectuate effectuate, the transactions and confirmation of an absence of any legal or regulatory prohibition with respect to, the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as Receipt of a date business plan and budget of each of the Loan Parties on a consolidated basis, including forecasts prepared by management, of consolidated balance sheets, statements of operations and (on an annual basis only) statements of cash flow, in form and substance reasonably satisfactory to the Administrative Agent, on an annual basis through fiscal year 2026;
(ix) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases The Administrative Agent shall have received:
(a) reasonably satisfactory evidence that all certificates, agreements or instruments representing or evidencing the Pledged Securities and Intercompany Notes (each as defined in the Security Agreement and the Pledge Agreement), accompanied by instruments of transfer and stock powers undated and endorsed in blank have been delivered to the Administrative Agent are being tendered concurrently with Agent; provided that such extension certificates, agreements or instruments may be delivered within two Business Days of credit the Closing Date if not delivered on or other arrangements prior to the Closing Date;
(b) reasonably satisfactory evidence that the Borrowers have used commercially reasonable efforts to obtain all the other certificates, agreements, including Control Agreements (as defined in the Security Agreement), or instruments necessary to perfect the Administrative Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each Loan Party (as each such term is defined in the Security Agreement and to the extent required by such Agreements) and, if applicable, such certificates, agreements or instruments have been delivered to the Administrative Agent for the delivery of such termination statements and releases have been madeAgent;
(xic) An executed Collateral Access Agreement UCC and PPSA financing statements (including Fixture Filings) in appropriate form for filing under the UCC, PPSA, as applicable, filings with the United States Patent and Trademark Office, United States Copyright Office and Canadian Intellectual Property Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or other lien waiver agreement from appropriate or, in the lessoropinion of the Administrative Agent, desirable to perfect the Liens created, or other applicable Person for purported to be created, by the fulfillment center and the main distribution center as required under the Security AgreementCollateral Documents; and
(xiid) certified copies of UCC, PPSA, United States Patent and Trademark Office and United States Copyright Office and Canadian Intellectual Property Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) after giving effect to the Transactions; and
(x) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that that: (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no since September 30, 2020, there has not occurred any Material Adverse Change has occurred since January 30, 2010Change;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (b) the names and titles of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational bylaws, limited liability company agreement or other applicable governing document as in effect on the Closing Date; and (d) copies of its formation documents as in effect on the Closing Date certified as of a recent date by the appropriate state official where such documents are filed in a state office office, together with certificates as of a recent date from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement Agreement, the Notes and each of the other Loan Documents signed duly executed by an Authorized Officer and delivered to the Administrative Agent for the benefit of each the Lenders, together with all schedules to the Loan Party Documents and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence of filing of all Collateral Documents such other documents as may be are necessary to reflect valid grant and perfected first priority Liens perfect Prior Security Interests to the Administrative Agent for the benefit of the Lenders in the CollateralCollateral held by the Loan Parties;
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date in form and opining as substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured ;
(vi) Evidence that all requisite Official Bodies and lender loss payable endorsements attached thereto in form and substance satisfactory material third parties shall have approved or consented to the Administrative Agent Transactions to the extent required, all applicable notice or appeal periods shall have expired and its counsel naming there shall be no governmental or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Administrative Agent as additional insured and lender loss payeeTransactions;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 8.2.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent) indicating (the absence “Existing Indebtedness Refinancing”);
(viii) Lien searches in reasonably acceptable scope and with reasonably acceptable results;
(ix) A certificate of Liens on an Authorized Officer of the assets Borrower as to the Solvency of each of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Parties after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or Transactions and the other arrangements reasonably satisfactory transactions contemplated to occur on the Administrative Agent for Closing Date and the delivery of such termination statements initial Loans hereunder;
(x) The Statements and releases have been madethe Financial Projections;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessorAbsence of any Material Adverse Change since September 30, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement2020; and
(xii) Such At least three (3) Business Days prior to the Closing Date, all documentation and other documentsinformation with respect to the Loan Parties required by regulatory authorities under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, instruments including, without limitation, the USA Patriot Act, and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestany required Certificate of Beneficial Ownership.
Appears in 1 contract
Deliveries. On At the Closing DateClosing:
(a) Seller will deliver, or cause to be delivered, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentBuyer:
(i) A certificate the Assignment of each of the Loan Parties signed Membership Interests duly executed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇;
(ii) the officer’s certificate described in Section 6.7;
(iii) a Form W-9 properly completed by Seller (or, if Seller is a disregarded entity, the Person treated as the owner of Seller for federal Income Tax purposes);
(iv) the resignations of all directors and officers of the Sale Entities that are not Business Employees;
(v) a certificate of good standing or the equivalent of recent date for each of the Sale Entities from their respective jurisdictions of organization;
(vi) all minute books, membership interest transfer ledgers (if any), and seal (if any) of each Sale Entity in the possession of any of the Sale Entities, Seller, or any of their respective Affiliates;
(vii) two copies of a USB containing all documents posted in the virtual data room hosted by Intralinks under “Project Genoa” at any time up to, and including, the Closing Date, and a true, complete and correct index thereof;
(viii) original copies, or if unavailable copies, of each guarantee, bond, letter of credit and other financial assurance in favor of the Sale Entities that is outstanding as of the Closing;
(ix) the Transition Services Agreement, duly executed by Seller.
(b) Buyer will deliver, or cause to be delivered, the following to Seller:
(i) the Base Purchase Price required by Section 2.1(b) of this Agreement, plus the Estimated Closing Payment Amount and, if applicable, the Support Obligation Payment;
(ii) the Assignment of Membership Interests, duly executed by ▇▇▇▇▇▇ ▇▇▇▇ & ;
(iii) the officer’s certificate described in Section 7.5;
(iv) reasonable evidence of the replacement, termination and release or provision of back-to-back guarantees for all Support Obligations, in each case, in accordance with Section 5.8(c); and
(v) the Transition Services Agreement, duly executed by ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(iA) A certificate of each of the Loan Parties Lead Borrower signed by an Authorized Officer of each the Lead Borrower, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents are true and correct in all material respects as of the Closing Date, except Date (unless qualified by materiality or reference to the extent absence of a Material Adverse Change, in which event such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects), (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xb) no Potential Default or Event of Default exists, or Potential Default exists and (yc) no Material Adverse Change has shall have occurred since January 3028, 2010;
2017; (ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iiiB) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan PartiesParty, certifying as appropriate as to: (a) resolutions authorizing all action taken by each such Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers of such Loan Party authorized to sign the Loan Documents and their true signatures; and (c) copies of its such Loan Party’s organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each its state where organized or qualified to do business;
of organization; (ivC) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer; (D) Written opinions of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date for the benefit of the Administrative Agent and opining as to the matters set forth in Schedule 6.1.1;
each Lender; (viE) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, and with respect to liability insurance coverage, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.223667699
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrowersuch Loan Party, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and other conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do and in a state listed on Schedule 6.
1.1 where such Loan Party maintains a principal place of business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, which shall be in form and evidence of filing of all Collateral Documents as may be necessary substance reasonably satisfactory to reflect valid and perfected first priority Liens in the CollateralAdministrative Agent;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1, which shall be in form and substance reasonably satisfactory to the Administrative Agent;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee, all of which shall be in form and substance satisfactory to the Administrative Agent;
(viivi) A duly completed Compliance Certificate closing date certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower, which closing date certificate shall show a Leverage Ratio less than or equal to 3.50 to 1.00, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent;
(viiivii) All material consents required to effectuate the transactions contemplated hereby, including all regulatory approvals and licenses, absent any legal or regulatory prohibitions or material restrictions;
(ixviii) Evidence that amendments to the Existing Loan Senior Notes (2010), the Private Shelf Agreement has been terminated, and all outstanding obligations thereunder the Intercreditor Agreement have been paid entered into in form and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to substance consistent with the Administrative Agent (in each case dated as of a date terms set forth herein and reasonably satisfactory to the Administrative Agent;
(ix) indicating A Lien search in acceptable scope and with acceptable results, showing no Liens other than Permitted Liens;
(x) Evidence that the absence of Liens on ADS Mexicana Credit Facility has been entered into in accordance with the assets of terms and conditions set forth in the Loan Parties, except for Permitted Liens commitment letter and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeterm sheet applicable thereto;
(xi) An executed Collateral Access Evidence that the indebtedness and obligations under the Existing Credit Agreement or other lien waiver agreement have been amended and restated and shall from and after the lessor, or other applicable Person for the fulfillment center Closing Date be evidenced by this Agreement and the main distribution center as required under the Security Agreementother Loan Documents; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A this Agreement duly executed by the parties hereto;
(ii) a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 2010;
2023 (iiand the Administrative Agent and Required Lenders shall not have otherwise determined), (C) A Simplified Borrowing Base Certificate prepared as there is no action, suit, investigation or proceeding pending, or to the knowledge of the Closing Date Borrower, threatened in substantially any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash conditions stated in this Section 7.1 and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Section 7.2 have been satisfied;
(iii) A a certificate dated the Closing Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolutions or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in each the state where organized or qualified to do businessof its organization;
(iv) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralparties thereto;
(v) A written opinion opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel (including appropriate local counsel as reasonable required by the Administrative Agent) for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence on or prior to the Closing Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(vii) A a duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;the Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Closing Date and the Transactions on a Pro Forma Basis, the Loan Parties are in compliance with the financial covenants set forth in Section 9.12 and Section 9.13.
(viii) All all material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(x) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to evidence that the Administrative Agent are being tendered concurrently with such extension (on behalf of credit or the Lenders) shall have a valid and perfected first priority (other arrangements reasonably satisfactory to than Permitted Liens) lien and security interest in the Administrative Agent for the delivery of such termination statements pledged Collateral and releases all filing and recording fees and taxes shall have been madeduly paid;
(xi) An executed Collateral Access receipt by the Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other lien waiver agreement from pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the lessorpledged Equity Interests of any Foreign Subsidiary, or other applicable Person for such stock powers are deemed unnecessary by the fulfillment center and the main distribution center as required Administrative Agent in its reasonable discretion under the Security AgreementLaw of the jurisdiction of organization of such Person);
(D) searches of ownership of, and L▇▇▇▇ on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(xii) Such a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xiii) the Statements and the Projections;
(xiv) a list of all licenses of Holdings and its Subsidiaries as of the Closing Date required (i) to transact with a Sanctioned Person or in a Sanctioned Jurisdiction, or (ii) under applicable export laws;
(xv) the Administrative Agent and each Lender that has so requested shall have received, in form and substance acceptable to the Administrative Agent and such Lender (A) no later than three (3) Business Days prior to the Closing Date, an executed Certificate of Beneficial Ownership and (B) such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act; and
(xvi) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(iA) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects, except for representations and warranties which (A) specifically refer to an earlier date which shall have been true and correct in all material respects as of the Closing Datesuch earlier date referred to therein, except to the extent such representations and warranties (B) are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in materiality which case they are will be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, (y) the Loan Parties are in compliance with ERISA and applicable labor laws, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iiiB) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(ivC) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower signed by a Compliance Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated as of the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement or the other Loan Documents are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement or such other Loan Document by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Change shall be true and correct in all respects, as of the Closing Date (wor, if such representation or warranty makes reference to an earlier date, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and the other Loan Documents, (xc) no Potential Default or Event of Default or Default exists, and (yd) there has occurred no Material Adverse Change either (y) in the business, properties, assets, or condition (financial or otherwise) of the Loan Parties, taken as a whole or (z) in the facts and information regarding the Loan Parties as represented to the Administrative Agent and the Lenders up to the Closing Date, taken as a whole, (e) each of the Loan Parties has occurred since January 30satisfied each of the closing conditions required to be satisfied by it hereunder and (f) a calculation, 2010calculated on a pro forma basis, of the Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do business; Table of Contents
(iii) evidence that there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(iv) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local, FCC or PUC counsel, if required by the Administrative Agent), dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vi) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee, as applicable;
(vii) A a duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior completed, executed Loan Request for Credit Extension for each Loan requested to be made on the Closing Date, including notice of election as to Interest Periods (if applicable);
(viii) a duly completed, executed Perfection and Diligence Certificate signed by an Authorized Officer of DSWeach of the Loan Parties;
(viiiix) All a duly completed, executed Solvency Certificate signed by an Authorized Officer of the Borrower on behalf of itself and the Loan Parties;
(x) evidence that all material consents governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated herebyhereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(ixxi) Evidence evidence that the Existing Loan Agreement Prior Credit Agreement, has been terminated, and all outstanding obligations thereunder have been paid in full and all Liens securing such obligations have been releasedreleased or assigned to the Administrative Agent, as applicable;
(xxii) Results of searches or a Lien search with respect to the Borrower and each other evidence reasonably Loan Party, in scope satisfactory to the Administrative Agent (in each case dated as of a date reasonably and with results showing no Liens other than Permitted Liens and otherwise satisfactory to the Administrative Agent; Table of Contents
(xiii) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to extent requested by the Administrative Agent for the delivery Agent, true, correct and complete copies of such termination statements and releases have been madeall Material Agreements not already delivered pursuant to another clause of this Section 4.1;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent Lender shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentLender:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, (except to the extent such for those representations and warranties that are modified qualified by “reference to materiality” or “Material Adverse Change” or words of similar import, in which case they are shall be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder), (x) no Potential Event of Default or Event of Potential Default exists, and (y) no Material Adverse Change has occurred since January 30March 1, 20102015;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with to duly authorize the execution, delivery and performance of this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with (or certified as not having changed since the versions most recently delivered to Lender); and (d) certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents (to the extent being executed on the date hereof) duly signed by an Authorized Officer of and each Loan Party and all appropriate financing statements and other party thereto;
(iv) All appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary Subsidiary Equity Interests (to reflect valid and perfected first priority Liens in the Collateralextent not already delivered to Lender);
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is A lien search in full force acceptable scope and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeacceptable results;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to Loan Request for any Loans being requested on the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents documentation and other information about the Borrowers that shall have been reasonably requested by the Lender and that the Lender reasonably determines is required to effectuate the transactions contemplated hereby;by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; and
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent Lender or its Parties’ counsel may have reasonably requestrequested.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, outside legal counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required and regulatory approvals and licenses necessary to effectuate the transactions contemplated hereby;
hereby shall have been completed and there shall be an absence of any legal or regulatory prohibitions or restrictions; (viii) A Lien search in acceptable scope and with acceptable results; (ix) Evidence that the Existing Loan Agreement has been terminatedUnless an exemption otherwise applies, an executed Certificate of Beneficial Ownership in form and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory substance acceptable to the Administrative Agent and each Lender, and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; (x) For the acquisition of Galvanize, Inc., copies of any agreements entered into by any Loan Party in each case dated connection with such Permitted Acquisition and any other documents or certificates as necessary for the Loan Parties to be in compliance with Section 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions]; (xi) Pro forma projections for the fiscal years 2020 through 2025, all of a date reasonably which shall be in form and substance satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens ; and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (K12 Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except (or in all respects with regard to the extent such representations and warranties are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects), (wx) the Loan Parties are in DMEAST #35945034 v12 69 compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Parent delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralparty thereto;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date Date, in form and opining as substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Parent most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWthe Parent, demonstrating compliance with the financial covenants herein;
(vii) Quarterly financial statements for the most recently completed fiscal quarter of the Parent for which such statements are available (and if the financial statements for the fiscal quarter ending September 30, 2018 are not available, financial statements for the month ending August 31, 2018), all in reasonable detail and certified by an Authorized Officer of the Parent;
(viii) Reserved;
(ix) All material consents consents, regulatory approvals and licenses required to effectuate effectuate, and confirmation of an absence of any legal or regulatory prohibition with respect to, the transactions contemplated hereby;
(ixx) Evidence that each of the Existing Loan Agreement Credit Facilities described on Schedule 7.1.1(x) has been terminated, and all outstanding obligations thereunder have been paid and all Liens (if any) securing such obligations have been released;
(xxi) Results Such Uniform Commercial Code and tax searches as shall be requested by the Administrative Agent, with results reasonably acceptable to the Administrative Agent; DMEAST #35945034 v12 70
(xii) To the extent required under applicable law, an executed Certificate of searches or other evidence reasonably satisfactory Beneficial Ownership for each Borrower, in form and substance acceptable to the Administrative Agent (and each Lender, and such other documentation and other information requested in each case dated as of a date reasonably satisfactory to connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;USA Patriot Act.
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all the representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default exists, or Potential Default exists and (yd) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified organized, and also in the states where the failure to do businessqualify would, in the Borrower’s reasonable judgment, cause a Material Adverse Effect;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence ;
(iv) The closing of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateraltransactions contemplated under the Acquisition Documents;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel in their reasonable discretion naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viii) All material consents required to effectuate the transactions contemplated hereby, including all regulatory approvals and licenses, absent any legal or regulatory prohibitions or material restrictions;
(ix) Evidence that the obligations under the Existing Loan Credit Agreement has have been terminatedamended and restated in accordance with the terms of this Agreement, and all outstanding obligations thereunder loans have been paid and all Liens securing such obligations have been releasedreallocated to the Lenders in accordance with their respective Ratable Share;
(x) Results A Lien search in acceptable scope and with acceptable results;
(xi) Projections of searches or other evidence reasonably satisfactory to the Administrative Agent (Borrower and its Subsidiaries through 2013, in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Om Group Inc)
Deliveries. On (a) At the Closing DateClosing, the Administrative Agent Sellers shall have received each of the following in form and substance reasonably satisfactory deliver to the Administrative AgentBuyer:
(i) A certificate Certificates representing the STAT-LAND Shares free and clear of each of the Loan Parties signed all Liens, either duly endorsed in blank or accompanied by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010duly executed stock powers;
(ii) A Simplified Borrowing Base Certificate prepared as The books and records of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Company;
(iii) A certificate dated An employment agreement in substantially the Closing Date and signed form attached hereto as Exhibit B, duly executed by ▇▇▇▇ ▇▇▇▇▇▇▇ (the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business"Employment Agreement");
(iv) This Agreement and each of The Escrow Agreement, duly executed by the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralSellers;
(v) True copies of the Articles of Incorporation and current Bylaws of the Company; a certificate of good standing with regard to the Company, together with an incumbency certificate reasonably satisfactory to the Buyer's counsel;
(vi) Compiled financial statements of the Company for fiscal year ended December 31, 1997 and a comfort or "negative assurances" letter for the interim financial statements of the Company for the period ended June 30, 1998 from Ruffulo & Rudder, CPAs;
(vii) A written opinion Qualified Investor Questionnaire and the Representations and Warranties of each Shareholders substantially in the forms of Exhibit C and Exhibit D respectively in a manner which does not adversely affect the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended (the "Securities Act");
(viii) Evidence that the Sellers have caused the Company to collect all principal, interest and other amounts due from any Affiliate and on all outstanding loans made by the Company;
(ix) Evidence that the Company has paid, or, upon payment pursuant to Section 1.4(a), will have caused to be paid, all principal, interest and other amounts on all outstanding loans payable by the Company, including, without limitation, payoff letters from Olympian Bank and Richmond County Savings Bank agreeing to deliver UCC-3 termination statements upon payment as set forth in Section 1.4(a), respectively;
(x) UCC-3 termination statements from Gateway State Bank or its successor releasing all its liens on the assets of the Company;
(xi) Employment Agreements in substantially the form attached hereto as Exhibit E, duly executed before a notary by (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, and (iii) ▇▇▇▇▇ ▇▇▇▇▇▇ LLP(collectively, counsel for the Loan Parties"At Will Employment Agreements");
(xii) Evidence of compliance with applicable state securities laws; and
(xiii) All other previously undelivered documents required pursuant hereto to be delivered by the Sellers, each dated as on behalf of the Closing Date and opining as Sellers or the Company, to the matters set forth Buyer at or prior to the Closing in Schedule 6.1.1connection with the purchase and sale of the STAT-LAND Shares and the other transactions contemplated hereby.
(b) At the Closing, the Buyer or Guardian, as the case may be, shall deliver to the Sellers and/or such other recipient, as the case may be:
(i) The Purchase Price, as determined and in the manner required by Section 1.3, 1.4 and 1.5 hereof;
(ii) The Employment Agreement, duly executed by the Buyer;
(iii) The At Will Employment Agreements, duly executed by the Buyer;
(iv) The Escrow Agreement, duly executed by the Buyer;
(v) True copies of the Articles of Incorporation and current Bylaws of each of the Buyer and Guardian; a certificate of good standing with regard to the Buyer, together with appropriate corporate resolutions and incumbency certificates reasonably satisfactory to the Sellers' counsel;
(vi) Evidence that adequate insurance All other previously undelivered documents required pursuant hereto to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory delivered by the Buyer and/or Guardian to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended Sellers at or prior to the Closing Date, signed by an Authorized Officer in connection with the purchase and sale of DSW;
(viii) All material consents required to effectuate the Shares and the other transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Stock Purchase Agreement (Guardian International Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Certified copies of each Loan Party the FERC Order and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;IURC Order.
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1(a);
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing DateJune 30, 2015, signed by an Authorized Officer of DSWOfficer;
(viii) All material consents required to effectuate the transactions contemplated hereby;; and
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (v) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change Effect has occurred since January 30, 2010the date of the Audited Financial Statements of the Borrower delivered to the Administrative Agent and (z) the Rating of the Borrower by each Rating Agency (provided that no confirmation by the Rating Agencies shall be required);
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each the state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower (which may be inhouse counsel with respect to Ohio law), each dated as of the Closing Date and opining as Date, addressed to the matters set forth in Schedule 6.1.1Administrative Agent and each Lender;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material governmental consents required to effectuate the transactions contemplated herebyhereby (or certification from the Borrower there are no such consents);
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiivii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import(or, in which the case they are true and correct of any such representation or warranty already qualified by materiality, in all respects), (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents (including originals of each Note requested by any Lender) signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence ;
(iv) A written opinion of filing of all Collateral Documents as may be necessary counsel for the Loan Parties acceptable to reflect valid and perfected first priority Liens Administrative Agent in the Collateralits reasonable discretion;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(viii) A Lien search in acceptable scope and with acceptable results;
(ix) Evidence that All documentation and other information required by bank regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;USA Patriot Act; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 10.3 [Exculpatory Provisions], for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract