CONDITIONS TO BORROWINGS. The availability of the Term Loans under the Exit Credit Agreement will be subject solely to satisfaction (or waiver) of the following conditions (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to the Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, financial condition or results of operations on the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); · the Administrative Agent shall have received a certificate (in substantially the same form as the corresponding certificate delivered in connection with the Prepetition Term Loan Credit Agreement) of the chief financial officer (or financial officer in a similar role) of the Parent Borrower, stating that it and its subsidiaries, taken as a whole, as of the Effective Date, are solvent, in each case, after giving effect to the consummation of the Plan; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, shall have been paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date agreed to by the Administrative Agent) to the extent requested ten (10) days prior to the Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · the effective date under the Plan shall have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each holder of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case shall have occurred substantially contemporaneously with the closing of the Term Loan Facility); · the Pre-Petition ABL Credit Agreement shall have been replaced with a new credit agreement providing asset-based lending facilities for working capital and other general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to the Required Consenting Stakeholders (any such credit agreement, the “Exit ABL Credit Agreement”, and the facility in place as of the Effective Date under either the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, the “Exit ABL Facility”);
Appears in 1 contract
Samples: Guaranty and Collateral Agreement (Ascena Retail Group, Inc.)
CONDITIONS TO BORROWINGS. The availability of the Term Loans under the Exit Credit Agreement will be subject solely to satisfaction (or waiver) of the following conditions (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to the Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, financial condition or results of operations on the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); · the Administrative Agent shall have received a certificate (in substantially the same form as the corresponding certificate delivered in connection with the Prepetition Term Loan Credit Agreement) of the chief financial officer (or financial officer in a similar role) of the Parent Borrower, stating that it and its subsidiaries, taken as a whole, as of the Effective Date, are solvent, in each case, after giving effect to the consummation of the Plan; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx Xxxxxxxxx & Co. and Milbank LLP, shall have been paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date agreed to by the Administrative Agent) to the extent requested ten (10) days prior to the Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · the effective date under the Plan shall have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each holder of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case shall have occurred substantially contemporaneously with the closing of the Term Loan Facility); · the Pre-Petition ABL Credit Agreement shall have been replaced with a new credit agreement providing asset-based lending facilities for working capital and other general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to the Required Consenting Stakeholders (any such credit agreement, the “Exit ABL Credit Agreement”, and the facility in place as of the Effective Date under either the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, the “Exit ABL Facility”);
Appears in 1 contract
CONDITIONS TO BORROWINGS. The availability of the Term Loans under the Exit Credit Agreement will be subject solely to satisfaction (or waiver) of the following conditions (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to the Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, financial condition or results of operations on the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); · the Administrative Agent shall have received a certificate (in substantially the same form as the corresponding certificate delivered in connection with the Prepetition Term Loan Credit Agreement) of the chief financial officer (or financial officer in a similar role) of the Parent Borrower, stating that it and its subsidiaries, taken as a whole, as of the Effective Date, are solvent, in each case, after giving effect to the consummation of the Plan; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, shall have been paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date agreed to by the Administrative Agent) to the extent requested ten (10) days prior to the Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · the effective date under the Plan shall have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each holder of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case shall have occurred substantially contemporaneously with the closing of the Term Loan Facility); · the Pre-Petition ABL Credit Agreement shall have been replaced with a new credit agreement providing asset-based lending facilities for working capital and other general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to the Required Consenting Stakeholders (any such credit agreement, the “Exit ABL Credit Agreement”, and the facility in place as of the Effective Date under either the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, the “Exit ABL Facility”);
Appears in 1 contract
CONDITIONS TO BORROWINGS. The availability obligation of a Lender to make a Loan to the Term Loans under Borrowers as part of a Borrowing is subject to the Exit Credit Agreement will be subject solely to satisfaction (or waiver) of the following conditions (conditions: - this Agreement is effective; - the date on which such conditions are satisfied (or waived) being Administrative Agent receives a Borrowing Notice conforming to the “Effective Date”): · execution and delivery requirements of this Agreement; - immediately after the Borrowing, the aggregate unpaid principal amount of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to Loans will not exceed the Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents lesser of the Loan PartiesAggregate Commitment or the Borrowing Base; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition - each Borrower represents that has had or would be reasonably expected, either individually or no material adverse change in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, its financial condition or results of operations has occurred; - immediately before and after the Borrowing, no Default will have occurred and be continuing; - the representations and warranties of the Borrowers contained in this Agreement are true on and as of the Loan Parties or any date of their respective Subsidiaries will be disregarded the Borrowing with the same effect as if made on and as of such date (provided that this exception shall not apply except to the extent that it is materially disproportionately adverse such representations and warranties expressly relate to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)an earlier date); · - the Administrative Agent shall have received a certificate (in substantially the same form as the corresponding certificate delivered in connection receives, with the Prepetition Term Loan Credit Agreement) of the chief financial officer (or financial officer in a similar role) of the Parent BorrowerBorrowing Notice, stating that it and its subsidiaries, taken as a whole, as of the Effective Date, are solvent, in each case, after giving effect an update to the consummation of the Plantitle policy for each Borrowing on a Development Project; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, - no mechanic's lien claim shall have been paid (filed or asserted against any Mortgaged Property, which has not been "bonded off" such Mortgaged Property in accordance with applicable law; - all licenses, permits and approvals of governmental authorities required for the operation of the respective Mortgaged Properties shall have been caused to be paid), obtained and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date agreed to by the Administrative Agent) to the extent requested ten (10) days prior to the Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · - each request for a Borrowing for a Development Project shall be subject to the effective date under approval of the Plan Administrative Agent and the Administrative Agent's construction consultant, which approval shall not be unreasonably withheld or delayed; - there shall have occurredoccurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; - there shall be no action, suits or proceedings pending, or contemporaneous with to the conversion Borrowers' knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability of the DIP Term Facility Borrowers to the Term Loan Facility shall occur, and all conditions precedent thereto pay their obligations as set forth therein shall have been satisfied herein or waived (including (x) adversely affect the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each holder priority or security of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case Mortgage; and - there shall have occurred substantially contemporaneously with no material adverse change in the closing financial condition of the Term Loan Facility); · the Pre-Petition ABL Credit Agreement shall have been replaced with a new credit agreement providing asset-based lending facilities for working capital and other general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to the Required Consenting Stakeholders (either Borrower or any such credit agreement, the “Exit ABL Credit Agreement”, and the facility in place as of the Effective Date under either the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, the “Exit ABL Facility”);Mortgaged Property.
Appears in 1 contract
Samples: Revolving Credit Agreement (Mid America Apartment Communities Inc)
CONDITIONS TO BORROWINGS. The availability obligation of a Lender to make a Loan to the Term Loans under Borrowers as part of a Borrowing is subject to the Exit Credit Agreement will be subject solely to satisfaction (or waiver) of the following conditions (conditions: o this Agreement is effective; o the date on which such conditions are satisfied (or waived) being Administrative Agent receives a Borrowing Notice conforming to the “Effective Date”): · execution and delivery requirements of this Agreement; o immediately after the Borrowing, the aggregate unpaid principal amount of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to Loans will not exceed the Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents lesser of the Loan PartiesAggregate Commitment or the Borrowing Base; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition o each Borrower represents that has had or would be reasonably expected, either individually or no material adverse change in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, its financial condition or results of operations has occurred; o immediately before and after the Borrowing, no Default will have occurred and be continuing; o the representations and warranties of the Borrowers contained in this Agreement are true on and as of the Loan Parties or any date of their respective Subsidiaries will be disregarded the Borrowing with the same effect as if made on and as of such date (provided that this exception shall not apply except to the extent that it is materially disproportionately adverse such representations and warranties expressly relate to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)an earlier date); · the Administrative Agent shall have received a certificate (in substantially the same form as the corresponding certificate delivered in connection receives, with the Prepetition Term Loan Credit Agreement) of the chief financial officer (or financial officer in a similar role) of the Parent BorrowerBorrowing Notice, stating that it and its subsidiaries, taken as a whole, as of the Effective Date, are solvent, in each case, after giving effect an update to the consummation of the Plantitle policy for each Borrowing on a Development Project; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, o no mechanic's lien claim shall have been paid (filed or asserted against any Mortgaged Property, which has not been "bonded off" such Mortgaged Property in accordance with applicable law; o all licenses, permits and approvals of governmental authorities required for the operation of the respective Mortgaged Properties shall have been caused to be paid), obtained and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date agreed to by the Administrative Agent) to the extent requested ten (10) days prior to the Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · o each request for a Borrowing for a Development Project shall be subject to the effective date under approval of the Plan Administrative Agent and the Administrative Agent's construction consultant, which approval shall not be unreasonably withheld or delayed; o there shall have occurredoccurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; o there shall be no action, suits or proceedings pending, or contemporaneous with to the conversion Borrowers' knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability of the DIP Term Facility Borrowers to the Term Loan Facility shall occur, and all conditions precedent thereto pay their obligations as set forth therein shall have been satisfied herein or waived (including (x) adversely affect the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each holder priority or security of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case Mortgage; and o there shall have occurred substantially contemporaneously with no material adverse change in the closing financial condition of either Borrower or any Mortgaged Property. Each Borrowing shall constitute a representation and warranty by the Borrowers that, on the date of the Term Loan Facility); · the Pre-Petition ABL Credit Agreement shall have been replaced with a new credit agreement providing asset-based lending facilities for working capital and other general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to the Required Consenting Stakeholders (any such credit agreementBorrowing, the “Exit ABL Credit Agreement”, and the facility conditions set forth in place as of the Effective Date under either the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, the “Exit ABL Facility”);this Section 3.2 are satisfied.
Appears in 1 contract
Samples: Revolving Credit Agreement (Mid America Apartment Communities Inc)
CONDITIONS TO BORROWINGS. The availability obligation of a Lender to make a Loan to the Term Loans under Borrowers as part of a Borrowing is subject to the Exit Credit Agreement will be subject solely to satisfaction (or waiver) of the following conditions (conditions: • this Agreement is effective; • the date on which such conditions are satisfied (or waived) being Administrative Agent receives a Borrowing Notice conforming to the “Effective Date”): · execution and delivery requirements of this Agreement; • immediately after the Borrowing, the aggregate unpaid principal amount of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to Loans will not exceed the Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents lesser of the Loan PartiesAggregate Commitment or the Borrowing Base; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition • each Borrower represents that has had or would be reasonably expected, either individually or no material adverse change in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, its financial condition or results of operations has occurred; • immediately before and after the Borrowing, no Default will have occurred and be continuing; • the representations and warranties of the Borrowers contained in this Agreement are true on and as of the Loan Parties or any date of their respective Subsidiaries will be disregarded the Borrowing with the same effect as if made on and as of such date (provided that this exception shall not apply except to the extent that it is materially disproportionately adverse such representations and warranties expressly relate to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)an earlier date); · • the Administrative Agent shall have received a certificate (in substantially the same form as the corresponding certificate delivered in connection receives, with the Prepetition Term Loan Credit Agreement) of the chief financial officer (or financial officer in a similar role) of the Parent BorrowerBorrowing Notice, stating that it and its subsidiaries, taken as a whole, as of the Effective Date, are solvent, in each case, after giving effect an update to the consummation of the Plantitle policy for each Borrowing on a Development Project; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, • no mechanic’s lien claim shall have been paid (filed or asserted against any Mortgaged Property, which has not been “bonded off” such Mortgaged Property in accordance with applicable law; • all licenses, permits and approvals of governmental authorities required for the operation of the respective Mortgaged Properties shall have been caused to be paid), obtained and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date agreed to by the Administrative Agent) to the extent requested ten (10) days prior to the Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · • each request for a Borrowing for a Development Project shall be subject to the effective date under approval of the Plan Administrative Agent and the Administrative Agent’s construction consultant, which approval shall not be unreasonably withheld or delayed; • there shall have occurredoccurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; • there shall be no action, suits or proceedings pending, or contemporaneous with to the conversion Borrowers’ knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability of the DIP Term Facility Borrowers to the Term Loan Facility shall occur, and all conditions precedent thereto pay their obligations as set forth therein shall have been satisfied herein or waived (including (x) adversely affect the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each holder priority or security of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case Mortgage; and • there shall have occurred substantially contemporaneously with no material adverse change in the closing financial condition of either Borrower or any Mortgaged Property. Each Borrowing shall constitute a representation and warranty by the Borrowers that, on the date of the Term Loan Facility); · the Pre-Petition ABL Credit Agreement shall have been replaced with a new credit agreement providing asset-based lending facilities for working capital and other general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to the Required Consenting Stakeholders (any such credit agreementBorrowing, the “Exit ABL Credit Agreement”, and the facility conditions set forth in place as of the Effective Date under either the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, the “Exit ABL Facility”);this Section 3.2 are satisfied.
Appears in 1 contract
Samples: Revolving Credit Agreement (Mid America Apartment Communities Inc)
