Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Date (or, in the case of certificates of governmental officials, a recent date before the Account Release Date) and each in form and substance satisfactory to the Administrative Agent: (i) in connection with the Security Agreement: (A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing, (C) completed bringdown requests for information, dated on or before the Account Release Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, (D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, (E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent) including covering any property (including fixtures) subject to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, and (F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby; (ii) in connection with the Mortgages: (A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid, (B) if required by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) if required by the Administrative Agent, updates to previously delivered or additional deliverables described in Sections 4.01(c)(iii)(A), (B) and (C), and Sections 4.01(c), (x), (xi) and (xii), (D) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent, (E) evidence of the insurance required by the terms of the Mortgages, and (F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement; (iv) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (v) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vi) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Date, as to: (A) the absence of any Default or Event of Default under the Loan Documents and the other Transaction Documents, (B) the truth of the representations and warranties contained in the Loan Documents, (C) the satisfaction or waiver of all the Account Release Conditions, and that the Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence of the Account Release Date and (E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Date; (vii) certificates attesting to the Solvency of each Loan Party after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence), from its chief financial officer; (viii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, dated as of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent; (ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are located, as requested by the Administrative Agent, dated as of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent; (x) a duly completed Compliance Certificate as of the last day of the fiscal year of Holdings ended December 27, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings; (xi) fully executed copies of the Revolving Credit Loan Documents (including the schedules thereto) in each case in form and substance reasonably satisfactory to the Arrangers; and (xii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
Appears in 1 contract
Samples: Credit Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Amendment and Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Account Release Amendment and Restatement Effective Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the amended and restated Guaranty, sufficient in connection number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Agreement, covering the Collateral described therein or such other evidence reasonably satisfactory to in the Collateral Agent that such financing statements have been duly submitted for filingSecurity Agreement,
(C) completed bringdown requests for informationcertified copies of UCC, dated on tax and judgment lien searches, or before the Account Release Dateequivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements filed in the jurisdictions referred to in clause (Band documents) above that name any Loan Party as debtor, together with copies 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 financing statementssearches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) to the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement duly executed by the appropriate parties,
(F) a Perfection Certificate, duly executed by each Loan Party; and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive receipt of duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agentagreements);
(iv) including covering any property (including fixtures) subject to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof;
(v) an intellectual property will not be required where security agreement, in substantially the Administrative Agent determines form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement, in its reasonable discretion that each case as amended, the costs of perfection materially outweigh the benefits provided“Intellectual Property Security Agreement”), and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each Loan PartyCMS Gxxxxxxx Packaging Systems, Inc., together with evidence that all attachments contemplated thereby;
(ii) in connection with the Mortgages:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) if required by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required by the Administrative Agent, updates to previously delivered or additional deliverables described in Sections 4.01(c)(iii)(A), (B) and (C), and Sections 4.01(c), (x), (xi) and (xii),
(D) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Mortgages, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages Intellectual Property Security Agreement has been taken;
(iiivi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreementparty;
(ivvii) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable opinion of Ixx X. Xxxxxxxxxx, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of Hxxxxx Hxxxxxx & Rxxx LLP special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vixi) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Date, as to: (A) the absence of any Default or Event of Default under the Loan Documents and the other Transaction Documents, (B) the truth of the representations and warranties contained in the Loan Documents, (C) the satisfaction or waiver of all the Account Release Conditions, and certifying that the Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (Dconditions specified in Sections 4.02(a) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence of the Account Release Date and (Eb) that there has have been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Datesatisfied;
(viixii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence)Transaction, from its chief financial officer;
(viiixiii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel evidence that all insurance required to be maintained pursuant to the Loan PartiesDocuments has been obtained and is in effect, dated as together with the certificates of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent;
(ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are locatedinsurance, as requested by naming the Administrative Agent, dated as on behalf of the Account Release Date and addressed Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Administrative Agent assets and each Lender in a form reasonably acceptable to the Administrative Agent;
(x) a duly completed Compliance Certificate as properties of the last day of the fiscal year of Holdings ended December 27, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xi) fully executed copies of the Revolving Credit Loan Documents (including the schedules thereto) in each case in form and substance reasonably satisfactory to the ArrangersParties that constitutes Collateral; and
(xiixiv) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
Appears in 1 contract
Samples: Credit Agreement (Cenveo, Inc)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Closing Date (or, in the case of certificates of governmental officials, a recent date before the Account Release DateClosing Date and) and each in form and substance satisfactory to the Administrative Agent:
(i) in connection with executed counterparts of this Agreement and the Guaranty;
(ii) the Security Agreement, IP Security Agreements and (within a reasonable time period from the Closing Date) Account Control Agreements for the deposit or investment accounts identified on Schedule 4.01(c)(ii), together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted proper form for filing,
(C) completed bringdown requests for information, dated on or before the Account Release Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent) including covering any property (including fixtures) subject to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(ii) in connection with the Mortgages:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages Security Agreement and the other Collateral Documents (as applicable), covering the Collateral described therein in the Security Agreement (other than the Mortgages) (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements in respect of the Existing Revolving Credit Agreement and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent where Collateral in excess of $10,000,000 is located), and all other documents and instruments required to perfect or evidence the Collateral Agent’s security interest in the Collateral executed and in proper form for filing, in each case to be filed or recorded, as applicable, on the Closing Date; provided, that perfection steps with respect to property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection is excessive relative to the benefits provided; and
(B) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name any Loan Party as debtor, together with copies of such other evidence reasonably satisfactory financing statements,
(iii) within 60 days of the Closing Date (or within a reasonable time period thereafter, as determined by the Administrative Agent), the Borrower use its reasonable efforts to, and shall cause each Loan Party to use its reasonable efforts to, deliver to the Collateral Administrative Agent (it being understood that no such financing statements have been duly submitted for filing and (ii) evidence that counterparts requirements shall apply with respect to the Borrower’s facility located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 until the date which is 12 months following the Closing Date, provided such facility remains in the ownership of the Mortgages have Loan Parties on such date):
(A) a Mortgage with respect to each property listed on Schedule 4.01(c)(iii), together with any subordination agreements, if required, together with evidence such Mortgage has been duly executed, acknowledged and delivered by a duly authorized officer of each party thereto on or before such date and are is in form suitable for filing or and recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien perfected Lien, excepting only Permitted Encumbrances, on the property described therein in favor of the Administrative Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible filing and recording taxes and fees have been paidpaid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided, that any such Mortgage will not be required where the Administrative Agent determines in its reasonable discretion that the costs of obtaining such Mortgage is excessive relative to the benefits provided,
(B) if required by the Administrative Agent, updates to the copies of any existing American Land Title Association/American Congress on Surveying and Mapping form surveys,
(C) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements) and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured coninsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting perfected Liens on the property described therein, free and clear of all defects Liens (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and such other Liens created permitted by or permitted under the Loan DocumentsSection 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if availablematerialmens’ Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may reasonably deem necessary or desirable,
, and, with respect to any property located in a state in which a zoning endorsement is not available (C) or for which a zoning endorsement is not available at a premium that is not excessive), if required requested by the Administrative Agent, updates a zoning compliance letter from the applicable municipality or a zoning report from Planning and Zoning Resource Corporation (or another person reasonably acceptable to previously delivered or additional deliverables described in Sections 4.01(c)(iii)(Athe Administrative Agent), (B) and (C), and Sections 4.01(c), (x), (xi) and (xii)in each case satisfactory to the Administrative Agent,
(D) if required by favorable opinions of local counsel to the Administrative AgentLoan Parties in states in which the Mortgaged Property is located, estoppel with respect to the enforceability and consent agreementsperfection of the Mortgages and any related fixture filings, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent,
(E) evidence that all fees, costs and expenses have been paid in connection with the preparation, execution, filing and recordation of the Mortgages, including, without limitation, reasonable attorneys’ fees, filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes and title search charges and other charges incurred in connection with the recordation of the Mortgages and the other matters discussed in this Section,
(F) no later than three (3) Business Days prior to the date on which a Mortgage is executed and delivered pursuant to this Agreement, in order to comply with the Flood Laws, the Administrative Agent shall have received the following documents: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”),
(G) evidence of the insurance required by the terms of the Mortgages, and
(FH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has Mortgages, have been takentaken or delivered as applicable.
(iv) certificates representing the Pledged Equity accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(v) a duly prepared and completed Perfection Certificate dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(iiivi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable)Documents, (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement;
(ivvii) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viix) copies of the financial statements referred to in Sections 5.05(a) and (b);
(x) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Closing Date, as to: (A) the absence of any Default or Event of Default under the Loan Documents and the other Transaction DocumentsDefault, (B) the truth of the representations and warranties contained in the Article V or any other Loan DocumentsDocument, (C) the satisfaction or waiver of all the Account Release Conditions, conditions precedent to the Closing Date forth in Section 4.01 required to be satisfied on or before the Closing Date and that the Credit Agreement, the Rights Offering Documents this Agreement and the Revolving Credit Term Loan Amendment and Restatement Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence as of the Account Release Closing Date and (E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Date;
(viixi) certificates attesting to the Solvency of each Loan Party after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence)Transaction, from its chief financial officer;
(viiixii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, dated as of the Account Release Closing Date and addressed to the Administrative Agent and each Lender Lender, in a form reasonably acceptable satisfactory to the Administrative Agent;
(ixxiii) any opinions of local counsel to the Loan Parties in an environmental assessment report for each of the respective states properties described in the Mortgages, in form and substance reasonably satisfactory to the Lenders, from an environmental consulting firm reasonably acceptable to the Lenders, for which all fees have been paid, and dated within 60 days of the properties covered by date of recordation of the Mortgages executed Mortgage, and delivered hereunder are located, as requested by the Administrative AgentAgent shall be reasonably satisfied with the nature and amount of any such matters and with Holdings’ and the Borrower’s plans with respect thereto, dated as of to be delivered no later than five Business Days prior to the Account Release Date and addressed time the respective Mortgages are required to be recorded pursuant to Section 4.01(c)(iii) (it being understood that no such environmental assessment report shall be required with respect to the Borrower’s facility located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000);
(xiv) evidence reasonably satisfactory to the Administrative Agent and each Lender in a form reasonably acceptable that all insurance required to be maintained pursuant to the Administrative AgentLoan Documents has been obtained and is in effect;
(x) a duly completed Compliance Certificate as of the last day of the fiscal year of Holdings ended December 27, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xixv) fully executed copies of the Revolving Credit Term Loan Documents (including to be entered into on the schedules thereto) Closing Date in each case in form and substance reasonably satisfactory to the ArrangersAdministrative Agent; and
(xiixvi) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
Appears in 1 contract
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Funding Date (or, in the case of certificates of governmental officials, a recent date before the Account Release Funding Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement, the Intercreditor Agreement and the Guaranty, sufficient in connection with number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a Security AgreementAgreement duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings)statements, duly filed on or before the Account Release Date day of the initial Credit Extension under the Uniform Commercial Code of all jurisdictions that the Collateral Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Agreement, covering the Collateral described therein or such other evidence reasonably satisfactory to in the Collateral Agent that such financing statements have been duly submitted for filingSecurity Agreement,
(C) completed bringdown requests for information, dated on or before the Account Release Datedate of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,and
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive receipt of duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by agreements);
(iv) deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the Administrative Agent) including covering any property form of Exhibit G (including fixtures) subject with such changes as may be satisfactory to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines and its counsel to account for local law matters) and covering the properties listed on Schedule 4.01(a)(iv) (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in its reasonable discretion that each case as amended, the costs of perfection materially outweigh the benefits provided“Mortgages”), and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each the appropriate Loan Party, together with all attachments contemplated thereby;
(ii) in connection with the Mortgageswith:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) if required by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required by the Administrative Agent, updates American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the initial Credit Extension, certified to previously delivered or additional deliverables the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in Sections 4.01(c)(iii)(A)such surveys is located and acceptable to the Administrative Agent, (B) showing all buildings and (C)other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and Sections 4.01(c)other defects, (x), (xi) other than encroachments and (xii)other defects acceptable to the Administrative Agent,
(D) if required by the Administrative Agent, engineering, soils and other reports as to the properties described in the Mortgages, in form and substance and from professional firms acceptable to the Administrative Agent,
(E) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(EF) evidence of the insurance required by the terms of the Mortgages,
(G) if required by the Administrative Agent, an appraisal of each of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, and
(FH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(iiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreementparty;
(ivvi) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit I-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viix) copies of the financial statements referred to in Sections 5.05(a) and (b) and a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Date, as to: certifying (A) that the absence of any Default or Event of Default under the Loan Documents conditions specified in Sections 4.02(a) and the other Transaction Documents(b) have been satisfied, and (B) the truth of the representations and warranties contained in the Loan Documents, (C) the satisfaction or waiver of all the Account Release Conditions, and that the Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence of the Account Release Date and (E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing DateEffect;
(viix) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence)Transaction, from its chief financial officer;
(viiixi) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, dated as of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent;
(ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are located, as requested if required by the Administrative Agent, dated as of the Account Release Date an environmental assessment report, in form and addressed substance satisfactory to the Administrative Agent and each Lender in a form reasonably Lenders from an environmental consulting firm acceptable to the Administrative AgentLenders, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any facilities of Holdings, the Borrower or any of their respective Subsidiaries, and the Lenders shall be satisfied with the nature and amount of any such matters and with Holdings’ plans with respect thereto;
(xxii) 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 Lenders, 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 the Loan Parties that constitutes Collateral;
(xiii) a duly completed Compliance Certificate as of the last day of the fiscal year quarter of Holdings ended December 27October 1, 20092006, signed by chief executive officer, chief financial officer, treasurer or controller of the Holdings;
(xi) fully executed copies of the Revolving Credit Loan Documents (including the schedules thereto) in each case in form and substance reasonably satisfactory to the Arrangers; and
(xii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
Appears in 1 contract
Samples: Credit Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Closing Date (or, in the case of certificates of governmental officials, a recent date before the Account Release Closing Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in connection number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a pledge and security agreement, in substantially the form of Exhibit G (together with each --------- other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in ------------ each case as amended, the "Security Agreement"), duly ------------------ executed by each Loan Party, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Agreement, covering the Collateral described therein or such other evidence reasonably satisfactory to in the Collateral Agent that such financing statements have been duly submitted for filingSecurity Agreement,
(C) completed bringdown requests for information, dated on or before the Account Release Datedate of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) the Account Control Agreements referred to in the Security Agreement duly executed by the appropriate parties,
(F) copies of the Material Contracts referred to in the Security Agreement, together with, if requested by the Administrative Agent, a consent to such assignment, in substantially the form required under the Security Agreement, duly executed by each party to such Material Contracts other than the Loan Parties,
(G) a Perfection Certificate, duly executed by each Loan Party; and
(H) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive receipt of duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements reasonably requested agreements);
(iv) deeds of trust, trust deeds, deeds to secure debt and mortgages, (other than leasehold mortgages and leasehold deeds of trust), in substantially the form of Exhibit H (with such changes as may be satisfactory to the --------- Administrative Agent and its counsel to account for local law matters) and covering the properties identified to be mortgaged on Schedules 5.08(c) and (d) (together with the ------------------------- Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each ------------ case as amended, the "Mortgages"), duly executed by the Administrative Agent) including covering any property (including fixtures) subject to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each --------- appropriate Loan Party, together with all attachments contemplated thereby;
(ii) in connection with the Mortgageswith:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paidpaid (or that arrangements for the payment thereof satisfactory to the Administrative Agent have been made),
(B) if required requested by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s 's Extended Coverage title insurance policies (the “"Mortgage Policies”") in form and substance, ----------------- with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ ' and materialmen’s 's Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ ' and materialmen’s 's Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required requested by the Administrative Agent, updates American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, certified to previously delivered or additional deliverables the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in Sections 4.01(c)(iii)(A)such surveys is located and acceptable to the Administrative Agent, (B) showing all buildings and (C)other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and Sections 4.01(c)other defects, (x), (xi) other than encroachments and (xii)other defects acceptable to the Administrative Agent,
(D) if required requested by the Administrative Agent, engineering, soils and other reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,
(E) if requested by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i5.08(d)(1), along ------------------- with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s 's reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent,
(EF) evidence of the insurance required by the terms of the Mortgages,
(G) if requested by the Administrative Agent, an appraisal of each of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, and
(FH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(iiiv) an intellectual property security agreement, in substantially the form of Exhibit I (together with each --------- other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, ------------ the "Intellectual Property Security Agreement"), duly ---------------------------------------- executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreementparty;
(ivvii) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable opinion of Xxxxxxx Xxxxx, Esq., General Counsel of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan ----------- Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of Xxxxxx Xxxxxxx & Xxxx LLP special New York counsel to the Loan Parties addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters ----------- concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vixi) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Date, as to: certifying (A) that the absence of any Default or Event of Default under the Loan Documents conditions specified in Sections 4.02(a) and the other Transaction Documents(b) have been satisfied, and (B) the truth of the representations and warranties contained in the Loan Documents, (C) the satisfaction or waiver of all the Account Release Conditions, and that the Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence of the Account Release Date and (E) ---------------- --- that there has been no event or circumstance since the date of the Audited Financial Statements that was not fully disclosed in public filings by Holdings with the SEC before May 16, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing DateEffect;
(viixii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence)Transaction, from its chief financial officer;
(viiixiii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, dated as of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent;
(ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are located, as if requested by the Administrative Agent, dated as an environmental assessment report, in form and substance satisfactory to the Lenders from an environmental consulting firm acceptable to the Lenders, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any facilities of any Loan Party or any of their respective Subsidiaries, and the Lenders shall be satisfied with the nature and amount of any such matters and with remedial or other plans with respect thereto;
(xiv) 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 Account Release Date Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and addressed properties of the Loan Parties that constitutes Collateral;
(xv) certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agentshall request;
(xxvi) a duly completed Compliance Certificate as of the last day of the fiscal year quarter of Holdings the Borrower ended December 27March 31, 20092006, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xi) fully executed copies of the Revolving Credit Loan Documents (including the schedules thereto) in each case in form and substance reasonably satisfactory to the ArrangersBorrower; and
(xiixvii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
Appears in 1 contract
Samples: Credit Agreement (Cenveo, Inc)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Date Closing Date, as applicable (or, in the case of certificates of governmental officials, a recent date before the Account Release DateAmendment and Restatement Effective Date and) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement and the Guaranty in connection with each case dated as of the Amendment and Restatement Effective Date;
(ii) IP Security Agreements in each case, as of the Amendment and Restatement Effective Date and (within a reasonable time period from the Amendment and Restatement Effective Date) Account Control Agreements for the deposit or investment accounts identified on Schedule 4.01(c)(ii) of the Existing Term Loan Agreement, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing,
(C) completed bringdown requests for information, dated on or before the Account Release Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent) including covering any property (including fixtures) subject to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(ii) in connection with the Mortgages:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly form filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages Security Agreement and the other Collateral Documents (as applicable), covering the Collateral described therein in the Security Agreement (other than the Mortgages) (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements in respect of the Existing Revolving Credit Agreement and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent where Collateral in excess of $10,000,000 is located), and all other documents and instruments required to perfect or evidence the Collateral Agent’s security interest in the Collateral executed and in each case, filed or in proper form for filing, as applicable, on the Amendment and Restatement Effective Date; provided, that perfection steps with respect to property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection is excessive relative to the benefits provided; and
(B) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name any Loan Party as debtor, together with copies of such other evidence reasonably satisfactory financing statements,
(iii) within 60 days of the Amendment and Restatement Effective Date (or within a reasonable time period thereafter, as determined by the Administrative Agent), the Borrower use its reasonable efforts to, and shall cause each Loan Party to use its reasonable efforts to, deliver to the Collateral Administrative Agent (it being understood that no such financing statements have been duly submitted for filing requirements shall apply with respect to the Borrower’s facility located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 until the date which is 12 months following the Amendment and (ii) evidence that counterparts Restatement Date, provided such facility remains in the ownership of the Mortgages have Loan Parties on such date):
(A) a Mortgage with respect to each property listed on Schedule 4.01(c)(iii) of the Restated Term Loan Agreement, together with any subordination agreements, if required, together with evidence such Mortgage has been duly executed, acknowledged and delivered by a duly authorized officer of each party thereto on or before such date and are is in form suitable for filing or and recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien perfected Lien, excepting only Permitted Encumbrances, on the property described therein in favor of the Administrative Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible filing and recording taxes and fees have been paidpaid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided, that any such Mortgage will not be required where the Administrative Agent determines in its reasonable discretion that the costs of obtaining such Mortgage or Mortgagee amendment, as applicable, is excessive relative to the benefits provided,
(B) if required by the Administrative Agent, updates to the copies of any existing American Land Title Association/American Congress on Surveying and Mapping form surveys,
(C) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements (including zoning endorsements) and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting perfected Liens on the property described therein, free and clear of all defects Liens (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and such other Liens created permitted by or permitted under Section 7.01 of the Restated Term Loan DocumentsAgreement, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if availablematerialmens’ Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may reasonably deem necessary or desirable,
, and, with respect to any property located in a state in which a zoning endorsement is not available (C) or for which a zoning endorsement is not available at a premium that is not excessive), if required requested by the Administrative Agent, updates a zoning compliance letter from the applicable municipality or a zoning report from Planning and Zoning Resource Corporation (or another person reasonably acceptable to previously delivered or additional deliverables described in Sections 4.01(c)(iii)(Athe Administrative Agent), (B) and (C), and Sections 4.01(c), (x), (xi) and (xii)in each case satisfactory to the Administrative Agent,
(D) if required by favorable opinions of local counsel to the Administrative AgentLoan Parties in states in which the Mortgaged Property is located, estoppel with respect to the enforceability and consent agreementsperfection of the Mortgages and any related fixture filings, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent,
(E) evidence that all fees, costs and expenses have been paid in connection with the preparation, execution, filing and recordation of the Mortgages, including, without limitation, reasonable attorneys’ fees, filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes and title search charges and other charges incurred in connection with the recordation of the Mortgages and the other matters discussed in this Clause (iii),
(F) no later than three (3) Business Days prior to the date on which a Mortgage is executed and delivered pursuant to this Clause (iii), in order to comply with the Flood Laws, the Administrative Agent shall have received the following documents: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”),
(G) evidence of the insurance required by the terms of the Mortgages, and
(FH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has Mortgages, have been takentaken or delivered as applicable.
(iv) certificates representing the Pledged Equity accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(v) a duly prepared and completed Perfection Certificate dated the Amendment and Restatement Effective Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(iiivi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable)Documents, (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement;
(ivvii) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viix) copies of the financial statements referred to in Section 6.01 of the Restated Term Loan Agreement;
(x) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Closing Date, as to: (A) the absence of any Default or Event of Default under the Loan Documents and the other Transaction DocumentsDefault, (B) the truth of the representations and warranties contained in Article V of the Restated Term Loan DocumentsAgreement or any other Loan Document, (C) the satisfaction or waiver of all the Account Release Conditions, conditions precedent to the Amendment and Restatement Effective Date forth in this Section 5 required to be satisfied on or before the Amendment and Restatement Effective Date and that the Credit Agreement, the Rights Offering Documents this Amendment and the Revolving Credit Restatement Agreement are is effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence as of the Account Release Amendment and Restatement Effective Date and (E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Amendment and Restatement Effective Date;
(viixi) certificates attesting to the Solvency of each Loan Party after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence)Transaction, from its chief financial officerofficer dated as of the Amendment and Restatement Effective Date;
(viiixii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, dated as of the Account Release Amendment and Restatement Effective Date and addressed to the Administrative Agent and each Lender Lender, in a form reasonably acceptable satisfactory to the Administrative Agent;
(ixxiii) any opinions of local counsel to the Loan Parties in an environmental assessment report for each of the respective states properties described in the Mortgages, in form and substance reasonably satisfactory to the Lenders, from an environmental consulting firm reasonably acceptable to the Lenders, for which all fees have been paid, and dated within 60 days of the properties covered by date of recordation of the Mortgages executed Mortgage , and delivered hereunder are located, as requested by the Administrative AgentAgent shall be reasonably satisfied with the nature and amount of any such matters and with Holdings’ and the Borrower’s plans with respect thereto, dated as of to be delivered no later than five Business Days prior to the Account Release Date and addressed time the respective Mortgages are required to be recorded pursuant to this Section 5 (it being understood that no such environmental assessment report shall be required with respect to the Borrower’s facility located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000);
(xiv) evidence reasonably satisfactory to the Administrative Agent and each Lender in a form reasonably acceptable that all insurance required to be maintained pursuant to the Administrative AgentLoan Documents has been obtained and is in effect;
(x) a duly completed Compliance Certificate as of the last day of the fiscal year of Holdings ended December 27, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xixv) fully executed copies of the Revolving Credit Loan Documents (including to be entered into on the schedules thereto) Closing Date and the Amendment and Restatement Effective Date in each case in form and substance reasonably satisfactory to the ArrangersAdministrative Agent; and
(xiixvi) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of a copy of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Closing Date (or, in the case of certificates of governmental officials, a recent date before the Account Release Closing Date) and each in form and substance satisfactory to the Required Lenders and the Administrative Agent:
(i) counterparts of this Agreement, the Payment Letters and a Guaranty, in connection each case, duly and properly executed and delivered by each of the parties thereto;
(ii) a Note duly and properly executed by a Responsible Officer of the Borrower in favor of each Lender requesting a Note;
(iii) a pledge and security agreement (together with each other pledge and security agreement and pledge and security agreement supplement delivered by any Loan Party pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly and properly executed by each of the parties thereto, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank by the applicable Loan Party and instruments evidencing the Pledged Debt (if any) indorsed in blankblank by the applicable Loan Party,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filingtherein,
(C) completed bringdown requests for informationcertified copies of UCC, dated on insolvency, tax, judgment lien and execution searches, or before the Account Release Dateequivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements filed in the jurisdictions referred to in clause (Band documents) above that name any Loan Party as debtordebtor and that are filed in those state, together with copies territory and county jurisdictions in which any Loan Party is organized or maintains its principal place of business, and such other financing statementssearches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) a Perfection Certificate, duly executed and properly completed by a Responsible Officer of each Loan Party, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and and/or the other Collateral Documents has been taken (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent) including covering any property (including fixtures) subject to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(ii) in connection with the Mortgages:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) if required by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required by the Administrative Agent, updates to previously delivered or additional deliverables described in Sections 4.01(c)(iii)(A), (B) and (C), and Sections 4.01(c), (x), (xi) and (xii),
(D) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real propertyOrders, as lessorapplicable, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Mortgages, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(iiiiv) [reserved];
(v) [reserved];
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreementparty;
(ivvii) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require require, including without limitation copies of each Loan Party’s Organizational Documents and certificates of good standing, to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) [reserved];
(ix) a favorable opinion of Xxxxxxxx & Xxxxx LLP, special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(x) a favorable opinion of Polsinelli, special Colorado, Georgia, Maryland and Virginia counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xi) [reserved];
(xii) a favorable opinion of Bose XxXxxxxx & Xxxxx LLP, special Indiana counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiii) each other Loan Document required by the Administrative Agent or the Required Lenders to be effective on the Closing Date, in each case, duly and properly executed by each of the parties thereto;
(xiv) [reserved];
(xv) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vixvi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and each other Loan Party, as of the Account Release Date, as to: (Ab) the absence of any Default or Event of Default under have been satisfied;
(xvii) [reserved];
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and the other Transaction Documentsis in effect, (B) the truth of the representations and warranties contained in the Loan Documents, (C) the satisfaction or waiver of all the Account Release Conditions, and that the Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously together with the occurrence certificates of the Account Release Date and (E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to haveinsurance, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Date;
(vii) certificates attesting to the Solvency of each Loan Party after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence), from its chief financial officer;
(viii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, dated as of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent;
(ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are located, as requested by naming the Administrative Agent, dated as on behalf of the Account Release Date and addressed Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Administrative Agent assets and each Lender in a form reasonably acceptable to the Administrative Agent;
(x) a duly completed Compliance Certificate as properties of the last day of the fiscal year of Holdings ended December 27, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xi) fully executed copies of the Revolving Credit Loan Documents (including the schedules thereto) in each case in form and substance reasonably satisfactory to the ArrangersParties that constitutes Collateral; and
(xiixix) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent or any Required Lender reasonably may require.
Appears in 1 contract
Samples: Senior Secured Super Priority Priming Debtor in Possession Credit Agreement (Cenveo, Inc)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Closing Date (or, in the case of certificates of governmental officials, a recent date before the Account Release Closing Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) in connection with the Security Agreement:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies counterparts of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing,
(C) completed bringdown requests for information, dated on or before the Account Release Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security this Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable Guaranty, sufficient in order number for distribution to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent) including covering any property (including fixtures) subject to Liens under , each Lender and the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated therebyBorrower;
(ii) in connection with a Note executed by the Mortgages:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein Borrower in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) if required by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required by the Administrative Agent, updates to previously delivered or additional deliverables described in Sections 4.01(c)(iii)(A), (B) and (C), and Sections 4.01(c), (x), (xi) and (xii),
(D) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) Lender requesting a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(E) evidence of the insurance required by the terms of the Mortgages, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been takenNote;
(iii) [Intentionally Omitted];
(iv) [Intentionally Omitted];
(v) [Intentionally Omitted];
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreementparty;
(ivvii) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable opinion of Txxxxxx Xxxxx, Esq., General Counsel of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of Hxxxxx Hxxxxxx & Rxxx LLP, special New York counsel to the Loan Parties addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vixi) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Date, as to: certifying (A) that the absence of any Default or Event of Default under the Loan Documents conditions specified in Sections 4.02(a) and the other Transaction Documents(b) have been satisfied, (B) that, to the truth best of the representations and warranties contained in the Loan Documentshis knowledge, (C) the satisfaction or waiver of all the Account Release Conditions, and that the Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence of the Account Release Date and (E) that there has been no not occurred since February 3, 2007 any development, change, event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to haveoccurrence that, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect other than (as a result defined in the Purchase Agreement), (C) that, to the best of his knowledge, there has not occurred any default or event of default in respect of the Cases Target Assumed Indebtedness, which default or as described event of default could reasonably be expected to be materially adverse to any Loan Party or the Lenders and (D) that the Target Acquisition has been consummated or will be consummated contemporaneously on the Closing Date in the Disclosure Statement or in the Borrower’s filings accordance with the SEC made prior to terms of the Closing DatePurchase Agreement, without the waiver, amendment, supplement or other modification of any such terms not approved by the Administrative Agent and the Lead Arranger;
(viixii) certificates a certificate attesting to the Solvency of each Loan Party Holdings and its Subsidiaries on a consolidated basis after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence)Transaction, from its the chief financial officerofficer of Holdings;
(viiixiii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel [intentionally omitted];
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Parties, dated as Documents has been obtained and is in effect;
(xv) certified copies of each of the Account Release Date Related Documents, duly executed by the parties thereto and addressed in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agentshall request;
(ixxvi) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are located, as requested by the Administrative Agent, dated as of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent[intentionally omitted];
(xxvii) a duly completed Compliance Certificate signed by the chief financial officer or treasurer of the Borrower, certifying that the Consolidated Leverage Ratio, calculated on a Pro Forma Basis after giving effect to the Loans, the additional borrowings under the Existing Credit Agreement referred to in clause (e)(i) below and the Target Acquisition, as of the last day of the fiscal year of Holdings ended December 27June 30, 20092007, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xi) fully executed copies of the Revolving Credit Loan Documents (including the schedules thereto) in each case in form and substance reasonably satisfactory to the Arrangersshall not be more than 5.25:1.00; and
(xiixviii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent or any Lender reasonably may require.
Appears in 1 contract
Samples: Loan Agreement (Cenveo, Inc)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Borrowing Date (or, in the case of (x) certificates of governmental officials, a recent date before the Borrowing Date and (y) the documents and certificates set forth in Section 4.01(c)(ii) below to be held in escrow and dated on and as of the Account Release Date and the Mortgages set forth in Section 4.01(c)(iii) below to be executed on and dated the Account Release Date) and each in form and substance satisfactory to the Administrative Agent:
(i) (x) executed counterparts of this Agreement, the Intercreditor Agreement, the Escrow Agreement and the Guaranty, sufficient in connection with number for distribution to the Administrative Agent, each Lender and the Borrower and (y) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ii) a Security Agreement, IP Security Agreements and (within a reasonable time period from the Closing Date) Account Control Agreements for the deposit or investment accounts identified on Schedule 4.01(c)(ii), in each case to be held in escrow until the Account Release Date, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date ) in proper form for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement covering Agreement, the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing,
(C) completed bringdown requests for information, dated on or before the Account Release Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement Mortgages and the other Collateral Documents that (as applicable), covering the Administrative Agent may deem necessary or desirable Collateral described in order the Security Agreement, the Mortgages and the other Collateral Documents (as applicable), and all other documents and instruments required to perfect or evidence the Liens created therebyCollateral Agent’s security interest in the Collateral executed and in proper form for filing, in each case to be held in escrow by the Collateral Agent and to be filed or recorded, as applicable, on the Account Release Date; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided; and
(B) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name any Loan Party as debtor, together with copies of such other financing statements,
(Eiii) evidence that all other action that deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the form of Exhibit G (with such changes as may be satisfactory to the Administrative Agent may deem necessary and its counsel to account for local law matters) in form for recording and covering the properties listed on Schedule 4.01(c)(iii) (together with the Assignments of Leases and Rents referred to therein in each case as amended, the “Mortgages”), together with the Subordination of Leases, if required, and in a form acceptable to Administrative Agent in each case to be delivered by the Closing Date (or desirable within a reasonable time period thereafter) to be held in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested escrow by the Administrative Agent) including covering any property (including fixtures) subject Agent and to Liens under the 2007 FRN Documents); providedbe executed, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits providedfiled or recorded, and
(F) A duly prepared and completed Perfection Certificate dated as applicable, on the Account Release Date and executed by a Responsible Officer of each Loan PartyDate, together with all attachments contemplated thereby;
(ii) the following, in connection with each case to be delivered within a reasonable time period after the MortgagesClosing Date:
(A) if required by the Administrative Agent, American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (iwhere applicable) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings)have been paid, duly filed on or and dated no more than 60 days before the Account Release Date under the Uniform Commercial Code of all jurisdictions that Closing Date, certified to the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably a manner satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable by a land surveyor duly registered and licensed in order to create a valid first and subsisting Lien on the states in which the property described therein in favor of such surveys is located and reasonably acceptable to the Administrative Agent for Agent, showing all buildings and other improvements, any off-site improvements, the benefit location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the Secured Parties absence of encroachments, either by such improvements or on to such property, and that all filingother defects, documentary, stamp, intangible other than encroachments and recording taxes and fees have been paidother defects reasonably acceptable to the Administrative Agent,
(B) if required by the Administrative Agent, updates engineering and zoning reports (and other reports if reasonably required by the Administrative Agent) as to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (properties described in the “Mortgage Policies”) Mortgages, for which all fees have been paid, and dated no more than 90 days before the Account Release Date, certified to the Administrative Agent, in form and substance, with endorsements substance and in amounts from professional firms reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,and
(C) if required by the Administrative Agent, updates to previously delivered or additional deliverables an appraisal of each of the properties described in Sections 4.01(c)(iii)(A)the Mortgages complying with the requirements of the Federal Financial Institutions Reform, (B) Recovery and (C)Enforcement Act of 1989 for which all fees have been paid, and Sections 4.01(c), (x), (xi) and (xii),
(D) if required by dated no more than 90 days before the Administrative Agent, estoppel and consent agreementsAccount Release Date, in form and substance satisfactory substances and from professional firms reasonably acceptable to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,.
(E) evidence of the insurance required by the terms of the Mortgages, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable)Documents, (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement;
(ivv) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vivii) copies of the financial statements referred to in Sections 5.05(a) and (b);
(viii) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Closing Date, as to: (A) the absence of any Default or Event of Default under the Loan Documents and the other Transaction DocumentsDefault, (B) the truth of the representations and warranties contained in Article V (other than the Account Release Date Representations) or any other Loan DocumentsDocument, (C) the satisfaction or waiver of all the Account Release Conditions, conditions precedent to the Closing set forth in Section 4.01 required to be satisfied on or before the Closing Date and that the Credit AgreementAgreement is effective, the proceeds of the Rights Offering have been deposited into an escrow or segregated account and the Rights Offering Documents have been executed and delivered and upon the effective date of the Plan, the Rights Offering Documents and the Revolving Credit Agreement are will be effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence as of the Account Release Closing Date and (E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Date;
(vii) certificates attesting to the Solvency of each Loan Party after giving effect to the Transaction and the Emergence (including the distributions to occur upon Emergence), from its chief financial officer;
(viiiix) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, dated as of the Account Release Closing Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent;
(ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are locatedLender, as requested by the Administrative Agent, dated as of the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent;
(x) a duly completed Compliance Certificate as an environmental assessment report for each of the last day of properties described in the fiscal year of Holdings ended December 27Mortgages, 2009in form and substance reasonably satisfactory to the Lenders, signed by chief executive officerfrom an environmental consulting firm reasonably acceptable to the Lenders, chief financial officerfor which all fees have been paid, treasurer or controller and dated no more than 90 days before the Account Release Date, which reports shall identify existing and potential environmental concerns, and shall quantify related costs and liabilities, associated with the operations facilities of Holdings, the Borrower and their respective Subsidiaries, and the Administrative Agent shall be reasonably satisfied with the nature and amount of any such matters and with Holdings’ and the Borrower’s plans with respect thereto, to be delivered by the Closing Date (or within a reasonable time period thereafter);
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xii) fully executed copies of the Rights Offering Documents and copies of the Revolving Credit Loan Documents (including the schedules thereto) Agreement in each case in substantially final form and substance reasonably satisfactory to the Arrangers; and
(xiixiii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
Appears in 1 contract
Samples: Credit Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Subject to the Post Closing Agreement, the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Account Release Closing Date (or, in the case of certificates of governmental officials, a recent date before the Account Release Closing Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in connection number for distribution to the Administrative Agent, each Lender and the Borrowers;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) a pledge and security agreement, in substantially the form of Exhibit F (together with each other pledge and security agreement and Perfection Certificate Supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Equity referred to therein (to the extent such Pledged Equity is certificated) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement Agreement, covering the Collateral described therein or such other evidence reasonably satisfactory to in the Collateral Agent that such financing statements have been duly submitted for filingSecurity Agreement,
(C) completed bringdown requests for information, dated on or before the Account Release Datedate of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) the Account Control Agreements referred to in the Security Agreement and duly executed by the appropriate parties,
(F) Copies of an appraisal of all equipment owned by the Loan Parties located at 8814 and 0000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxx 00000, and at the Company’s headquarters in San Diego, California, specifying the aggregate fair market value and orderly liquidation value of such equipment, which appraisal shall be from a Person acceptable to the Lenders; and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive receipt of duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by statements;
(iv) deeds of trust, trust deeds, deeds to secure debt, mortgages, in substantially the Administrative Agent) including covering any property form of Exhibit G (including fixtures) subject with such changes as may be satisfactory to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines and its counsel to account for local law matters) and covering the properties identified to be mortgaged on Schedule 5.08(c), as indicated by an asterisk on each such Schedule (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in its reasonable discretion that each case as amended, the costs of perfection materially outweigh the benefits provided“Mortgages”), and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each the appropriate Loan Party, together with all attachments contemplated thereby;
(ii) in connection with the Mortgageswith:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Mortgages covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing and (ii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) if required by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created by or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required by American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the initial Credit Extension, certified to the Administrative Agent, updates Agent and the issuer of the Mortgage Policies in a manner satisfactory to previously delivered or additional deliverables the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in Sections 4.01(c)(iii)(A), (B) such surveys is located and (C), and Sections 4.01(c), (x), (xi) and (xii),
(D) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory acceptable to the Administrative Agent, executed showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by each of the lessors of the leased real properties listed such improvements or on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessorand other defects, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed other than encroachments and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory other defects acceptable to the Administrative Agent,
(ED) evidence of the insurance required by the terms of the Mortgages,
(E) an appraisal of the all real property of any Loan Party subject to the Mortgages, which appraisal shall be from a Person acceptable to the Lenders, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(iiiv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreementparty;
(ivvi) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that the Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvii) a favorable opinion of Xxxxxx Godward Kronish LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H-1 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of Xxxxxxxx & Shohl, LLP, local counsel to the Loan Parties in the State of Ohio, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the Loan Documents and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vix) a certificate signed by a Responsible Officer of the Borrower and each other Loan Party, as of the Account Release Date, as to: Borrowers certifying (A) that the absence of any Default or Event of Default under the Loan Documents conditions specified in Sections 4.02(a) and the other Transaction Documents(b) have been satisfied, (B) the truth of the representations and warranties contained in the Loan Documents, (C) the satisfaction or waiver of all the Account Release Conditions, and that the Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence of the Account Release Date and (E) that there has been no event or circumstance since the date of the Audited Financial Statements March 31, 2007 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result Effect, (C) there is no action, suit, investigation or proceeding pending or, to the knowledge of the Cases Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect, and (D) a calculation of Unrestricted Cash as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to of the Closing Date;
(viixi) certificates attesting an environmental assessment report from an environmental consulting firm acceptable to the Solvency Lenders, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with Real Property of each Loan Party after giving effect the Company or any of its respective Subsidiaries that is subject to the Transaction a Mortgage hereunder, and the Emergence (including Lenders shall be satisfied with the distributions to occur upon Emergence), from its chief financial officernature and amount of any such matters and with the Borrowers’ plans with respect thereto;
(viiixii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel evidence that all insurance required to be maintained pursuant to the Loan PartiesDocuments has been obtained and is in effect, dated as together with the certificates of insurance and the Account Release Date and addressed to the Administrative Agent and each Lender in a form reasonably acceptable to the Administrative Agent;
(ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are locatedrelated endorsements, as requested by naming the Administrative Agent, dated as on behalf of the Account Release Date and addressed Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Administrative Agent assets and each Lender in a form reasonably acceptable to the Administrative Agent;
(x) a duly completed Compliance Certificate as properties of the last day of the fiscal year of Holdings ended December 27, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of HoldingsLoan Parties that constitutes Collateral;
(xi) fully executed copies of the Revolving Credit Loan Documents (including the schedules thereto) in each case in form and substance reasonably satisfactory to the Arrangers; and
(xii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
Appears in 1 contract
