Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent: (i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010; (ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000; (iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business; (iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral; (v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1; (vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee; (vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW; (viii) All material consents required to effectuate the transactions contemplated hereby; (ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released; (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made; (xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and (xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 3 contracts
Sources: Revolving Credit Facility (Retail Ventures Inc), Revolving Credit Facility (DSW Inc.), Revolving Credit Facility (DSW Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or Secretary, an Assistant Secretary or other Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrowers and demonstrating for the fiscal period ending November 30, 2010: (1) a trailing twelve month Consolidated EBITDA of the Loan Parties and their Subsidiaries of greater than or equal to $40,000,000 and (2) that the ratio of Consolidated Funded Debt of the Loan Parties and their Subsidiaries to trailing twelve month Consolidated EBITDA of the Loan Parties and their Subsidiaries is less than or equal to 3.25 to 1.00;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that each existing financing arrangement with any of the Existing Loan Agreement has Parties as set forth on Schedule 7.1 have been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released or have been agreed to be promptly released.
(ix) A review of the amount and nature of all tax, employee retirement benefit, labor contracts and relations, environmental and all other contingent liabilities (including any litigation) to which the Loan Parties may be subject;
(x) Results Evidence that the Borrowers have sufficient mine bonding capacity to conduct their operations as projected in accordance with the financial projections of searches or other evidence reasonably the Borrowers and their Subsidiaries provided to the Administrative Agent;
(xi) Evidence that all of the Loan Parties’ coal reserves are owned by subsidiaries of Elk Creek, L.P. (known as Western Mineral Development, LLC and Ceralvo Holdings, LLC), Western Diamond LLC, Western Land Company, LLC and ▇▇▇▇▇▇▇▇▇ Coal Company, Inc.;
(xii) Evidence that a minimum cash equity infusion of $5,000,000 has been made into Elk Creek, L.P. by its partners;
(xiii) An engineering report certified by an independent engineer acceptable to the Administrative Agent setting forth a review of matters satisfactory to the Administrative Agent, including (i) the coal mines, coal reserves and business operations of the Loan Parties as related to the financial projections of the Borrowers, (ii) the Loan Parties’ coal reserves, and/or (iii) the value of the coal reserves, equipment and infrastructure of the Loan Parties;
(xiv) The Authorized Officer of each Loan Party, acting in their capacities as such officers, shall have delivered a certificate in form and substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence solvency of Liens on the assets of the each Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Party after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madetransactions contemplated hereby;
(xixv) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center A Lien search in acceptable scope and the main distribution center as required under the Security Agreementwith acceptable results; and
(xiixvi) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 3 contracts
Sources: Credit Agreement (Armstrong Resource Partners, L.P.), Credit Agreement (Armstrong Energy, Inc.), Credit Agreement (Armstrong Energy, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the last Business Day of the month immediately preceding the Closing Date in substantially the form of Exhibit 7.3.4.1Date, showing total unused availability under the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on handCommitments, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby hereby.
(including repayment ii) A certificate of Indebtedness under each of the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on Parties signed by an Authorized Officer, dated the Closing Date), Date stating that: (a) the representations and warranties hereunder are true and correct in all material respects; (b) the Loan Parties are in compliance with each of at least $300,000,000;the covenants and conditions hereunder; (c) no Event of Default or Potential Default exists; and (d) no Material Adverse Change has occurred since the date of the last audited financial statements of the Borrower delivered to the Administrative Agent.
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;.
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;.
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;.
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;Borrower.
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that (a) the Existing Loan Credit Agreement has been terminated, and (b) all outstanding obligations thereunder Existing Credit Obligations have been paid and (c) all Liens securing such obligations Existing Credit Obligations have been released;.
(ix) All fees and expenses of the Lenders and the Agent required to be paid by the Loan Parties, including, without limitation, those fees set forth in the Administrative Agent’s Letter.
(x) Results of searches Certification that no claim, litigation, suit or other evidence reasonably proceeding has been made in writing against Borrower which, in the opinion of the Borrower is in an amount in excess of $2,000,000 other than as previously disclosed to the Administrative Agent.
(xi) Evidence in form and substance satisfactory to the Administrative Agent (in each case dated and its counsel as of a date reasonably satisfactory to the Administrative Agentamount and nature of all Tax, ERISA, employee retirement benefit and other contingent liabilities to which the Borrower and its Subsidiaries may be subject.
(xii) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Financial projections in form and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements substance reasonably satisfactory to the Administrative Agent for the delivery of such termination statements period beginning January 1, 2009 and releases have been made;ending on the Expiration Date.
(xixiii) An executed Collateral Access Agreement or other lien waiver agreement Landlord’s Waiver in substantially the form of Exhibit 6.1.1(xiii) from the lessor, or other applicable Person lessor for the fulfillment center and the main distribution center as each leased Collateral location required under the Security Agreement; and.
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 3 contracts
Sources: Credit Agreement (Under Armour, Inc.), Credit Agreement (Under Armour, Inc.), Credit Agreement (Under Armour, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default or Potential Default exists, and (yD) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent; and (E) there are no actions, 2010;suits, proceedings or investigations pending or, to the knowledge of any Loan Party, threatened against such Loan Party at law or in equity before any Official Body which individually or in the aggregate constitute a Material Adverse Change.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified and in each other state in which the failure to do businessbe registered and in good standing would constitute a Material Adverse Change;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing DateBorrowers ending June 30, 2017, signed by an Authorized Officer of DSWBorrowers;
(vii) All consents and regulatory approvals and licenses necessary to effectuate the transactions contemplated hereby shall have been completed and there shall be an absence of any legal or regulatory prohibitions or restrictions;
(viii) All material consents required Evidence that the indebtedness and obligations under the Existing Credit Agreement have been amended and restated and shall from and after the Closing Date be evidenced by this Agreement and the other Loan Documents and all Liens and security interests related to effectuate the transactions contemplated herebyExisting Credit Agreement have been released or terminated;
(ix) Evidence that Pro forma projections for the Existing Loan Agreement has been terminatedfiscal years 2017 through 2022, all of which shall be in form and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedsubstance satisfactory to the Administrative Agent;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;acceptable results; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Johnson Outdoors Inc), Credit Agreement (Johnson Outdoors Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Certified copies of each Loan Party the FERC Order and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralIURC Order;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1(a);
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, such documentation and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements information requested in connection with such transactions as applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative Agent or its counsel may reasonably request.USA Patriot Act; and
Appears in 2 contracts
Sources: Term Loan Agreement (Ipalco Enterprises, Inc.), Term Loan Agreement (Ipalco Enterprises, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrowers signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Company delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrowers, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeAgent;
(viiv) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Company most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Company;
(viiivi) All material consents required to effectuate the transactions contemplated hereby;
(ixvii) Evidence that the Existing Loan Credit Agreement dated as of July 2, 2007, among the Borrowers, the lenders party thereto and Huntington National Bank, as amended, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementpaid; and
(xiiviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Cincinnati Financial Corp), Credit Agreement (Cincinnati Financial Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the their representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viivi) A duly completed Compliance Certificate closing date compliance certificate, in form and substance satisfactory to the Administrative Agent, dated as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrowers;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Credit Agreement has been terminatedterminated or will be terminated concurrently with the execution of the Credit Agreement, and all outstanding obligations and commitments thereunder have been paid and all Liens securing such obligations have been released;
(xix) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementacceptable results; and
(xiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Revolving Credit Facility (Finish Line Inc /In/), Credit Agreement (Finish Line Inc /In/)
Deliveries. On the Closing Effective Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Effective Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import(or, in which the case they are true and correct of any such representation or warranty already qualified by materiality, in all respects), (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Effective Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Effective Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents (including originals of each Note requested by any Lender) signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence ;
(iv) A written opinion of filing of all Collateral Documents as may be necessary counsel for the Loan Parties acceptable to reflect valid and perfected first priority Liens Administrative Agent in the Collateralits reasonable discretion;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Effective Date, signed by an Authorized Officer of DSW▇▇▇▇▇▇▇▇;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(viii) A Lien search in acceptable scope and with acceptable results;
(ix) Evidence that All documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;USA Patriot Act; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 10.3 [Exculpatory Provisions], for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Crocs, Inc.), Credit Agreement (Crocs, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and each of which (unless otherwise specified) shall be original copies or telecopies promptly followed by original copies:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (yw) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrower delivered to the Administrative Agent, 2010(x) the conditions stated in both Section 7.1 and 7.2 have been satisfied, (y) there has been no material adverse change from any certificate, report, statement, agreement or other document or other written information previously supplied to the Administrative Agent and the Arrangers furnished by or on behalf of the Borrower in connection with the transactions contemplated by this Agreement or the other Loan Documents and (z) all material consents, licenses and approvals required for the delivery and performance by the Borrower of any Loan Document and the enforceability of any Loan Document against the Borrower is in full force and effect and none other is so required or necessary; provided that any increase of the Commitments in accordance with Section 2.11 [Increase in Revolving Credit Commitments] or the extension of any Expiration Date in accordance with Section 2.12 [Extension of Expiration Date] may require appropriate governmental or third party authorization thereof prior to the effectiveness of such increase or such extension, as the case may be;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with the Borrower to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (b) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified as of a sufficiently recent date prior to the Closing Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party the Borrower in the state of its organization and in each state where organized conduct of business or ownership or lease of properties or assets requires such qualification, except to the extent that the failure to be so qualified could not reasonably be expected to do businessresult in a Material Adverse Change;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer in a sufficient number of counterparts for delivery to each Loan Party Lender and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralAdministrative Agent;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as addressed to the matters set forth Administrative Agent and each Lender and in Schedule 6.1.1form and substance satisfactory to the Administrative Agent;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements endorsement attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent and the Secured Parties as additional insured and lender loss payeeinsureds;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date calculating the Funded Indebtedness to Total Adjusted Capitalization Ratio and the Total Indebtedness to Total Capitalization Ratio on a pro form basis after giving effect to the transactions contemplated hereby and the initial Loans borrowed on the Closing Date, signed by an Authorized Officer of DSWBorrower;
(vii) A Lien search in acceptable scope and with acceptable results;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that all Indebtedness (other than such Indebtedness permitted under Section 9.1) of the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Borrower shall have been paid in full and the commitments thereunder terminated and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations Indebtedness (other than such Liens permitted under Section 9.2) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement); and
(xiiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Chesapeake Utilities Corp), Credit Agreement (Chesapeake Utilities Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Certified copies of each Loan Party the FERC Order and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;IURC Order.
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1(a);
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWOfficer;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Credit Agreement dated as of May 16, 2006, as amended (the "Existing Loan Agreement Credit Agreement"), among the Borrower, Bank of America, N.A. (as successor to La Salle Bank National Association) as administrative agent, and the banks party thereto, has been terminated, and all outstanding obligations thereunder have been shall be paid and all Liens securing such obligations have been releasedwith the proceeds of the first Loans;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;acceptable results; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ipalco Enterprises, Inc.), Credit Agreement (Ipalco Enterprises, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xA) no Potential Default or Event of Default or Potential Default exists, and (yB) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the date of the Closing Date in substantially last audited financial statements of the form Borrower delivered to the Administrative Agent (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) all material consents, licenses and approvals, if any, required for the delivery and performance by any Loan Party of Exhibit 7.3.4.1any Loan Document and the enforceability of any Loan Document against such Loan Party have been obtained, showing (D) the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case Loan Parties taken as a whole after giving effect to the Loans Transactions scheduled to be made occur on the Closing Date are Solvent, (E) the representations and consummation of warranties set forth herein are true and correct, and (F) the transactions contemplated hereby conditions stated in this Section 7.1 (including repayment of Indebtedness under assuming the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunderAdministrative Agent’s and/or the Lenders’ satisfaction with such conditions precedent that require the Administrative Agent’s and/or the Lenders’ satisfaction) and payment Section 7.2 [Each Loan or Letter of fees Credit] have been satisfied, in each case other than those waived by the Administrative Agent and expenses owing on the Closing Date), of at least $300,000,000Lenders in writing;
(iiiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all attaching copies of such resolution or other corporate or organizational action duly taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan Documents; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with office; and (D) certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in each the state where organized or qualified to do businessof its organization;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralparties thereto;
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent;
(v) indicating the absence of Liens on the assets of the Loan PartiesEvidence, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently Agent, that all Indebtedness not permitted under Section 9.1 [Indebtedness] shall have been paid in full or will be paid in full after giving effect to the use of proceeds from the Loans made on the Closing Date and that all necessary termination statements, release statements and other releases in connection with all Liens (other than Liens permitted under Section 9.2) have been filed or satisfactory arrangements have been made for such extension of credit or other arrangements filing (including payoff letters, if applicable, in form and substance reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeAgent);
(xivi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; andThe Statements;
(xiivii) Certificate of Beneficial Ownership; USA PATRIOT Act Diligence. The Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(viii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Stewart Information Services Corp), Credit Agreement (Stewart Information Services Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth Borrower is in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change Effect has occurred and no material litigation that has or could reasonably be expected to cause a Material Adverse Effect exists since January 30, 2010;the date of the last audited financial statements of the Borrower delivered to the Administrative Agent.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;Officer.
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;.
(v) [Intentionally Omitted].
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;.
(vii) A Lien search in acceptable scope and with acceptable results.
(viii) The Chief Executive Officer, President or Chief Financial Officer of the Borrower, acting in their capacities as such officers, shall have delivered a certificate in substantially the form attached hereto as Exhibit 6.1.1 to the Administrative Agent as to the capital adequacy and solvency of the Borrower after giving effect to the transactions contemplated hereby.
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Dayton Power & Light Co), Credit Agreement (Dayton Power & Light Co)
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each the Borrower signed by a Financial Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Delayed Draw Date stating that (va) all representations and warranties of the Loan Parties Borrower set forth in Article V of this Agreement are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Effect shall be true and correct in all respects, (w) the Loan Parties are in compliance with each as of the covenants and conditions hereunderDelayed Draw Date (or, if such representation or warranty makes reference to an earlier date, as of such earlier date), (xb) no Potential Default or Event of Default or Default exists, and (yc) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect all material consents of any outstanding letters of credit issued thereunder) Governmental Authority or third party necessary for the Acquisition shall have been obtained and payment of fees be in full force and expenses owing effect without condition or provision that would reasonably be expected to have a “Buyer Adverse Condition” (as defined in the Acquisition Agreement as on effect on the Closing Date), (d) no event or condition has occurred since December 16, 2013 that individually or in the aggregate has had, or is reasonably likely to have, a “Seller Material Adverse Effect” (as defined in the Acquisition Agreement in effect on the Closing Date), and (e) attached thereto is a true, correct and complete copy of at least $300,000,000the Acquisition Agreement, together with all schedules, exhibits, appendices, attachments and amendments thereto, as in effect on the Delayed Draw Date;
(ii) a duly executed Compliance Certificate dated the Delayed Draw Date and evidencing a Total Leverage Ratio of no greater than 3.95:1.00 on a proforma basis after giving effect to the Term Loans and the Acquisition;
(iii) A a certificate dated the Closing Delayed Draw Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, Borrower certifying as appropriate as to: that (a) all action information 41 certified to in the certificate delivered to the Administrative Agent and the Lenders on the Closing Date pursuant to Section 4.1(b)(ii) remains true and correct in all respects as of the Delayed Draw Date, or providing updates to any changes therein, (b) each of the Organizational Documents attached thereto has not been modified since the Closing Date and remains in full force and effect or providing updates to any changes therein and (c) all corporate actions taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) Documents remain in full force and effect and authorize the names transactions contemplated as of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDelayed Draw Date;
(iv) This Agreement and each a duly completed, executed Loan Request for the Term Loans requested to be made on the Delayed Draw Date, including notice of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents election as may be necessary to reflect valid and perfected first priority Liens in the CollateralInterest Periods (if applicable);
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPa duly completed, counsel for the Loan Parties, each dated as executed Solvency Certificate signed by a Financial Officer of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Borrower;
(vi) Evidence evidence, in form and substance reasonably satisfactory to the Administrative Agent, that adequate insurance (A) the Acquisition has been or is being consummated on terms and conditions consistent with the Acquisition Agreement in the form attached to the certificate delivered to the Administrative Agent pursuant to Section 4.2(b)(i), in all material respects, substantially concurrently with the making of the Term Loans, other than any amendments, consents or waivers thereto that are not materially adverse to the Lenders (absent the prior consent of the Lenders, which consent shall not be unreasonably withheld or delayed; provided that an increase or reduction in the purchase price by 10% or less shall not be deemed materially adverse to the Lenders), and (B) all material governmental and third-party consents, subordinations or waivers, as applicable, required to be maintained under this Agreement is consummate the Acquisition have been obtained and are in full force and effect, with additional insured including any required material permits, authorizations or consents, of all applicable Governmental Authorities, including the FCC and lender loss payable endorsements attached thereto all applicable PUCs, in form and substance satisfactory each case without condition or provision that would reasonably be expected to have a “Buyer Adverse Condition” (as defined) in the Administrative Agent and its counsel naming Acquisition Agreement in effect on the Administrative Agent as additional insured and lender loss payeeClosing Date;
(vii) A duly completed Compliance Certificate as an executed letter from the Borrower with respect to any proceeds of the last day Term Loans being disbursed to third parties authorizing the Administrative Agent to distribute such proceeds on behalf of the fiscal quarter of DSW most recently ended prior to Borrower in accordance with the Closing Date, signed by an Authorized Officer of DSW;instructions set forth in such letter; and
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing any Term Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestNote requested by any Lender.
Appears in 2 contracts
Sources: Credit Agreement (Frontier Communications Corp), Credit Agreement (Frontier Communications Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement the Loan Documents are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Change, in which case such representations and warranties shall be true in all respects) on and as of the Closing Date, such date (except to the extent any such representations and warranties are modified by “materiality” representation or “Material Adverse Change” or words of similar importwarranty expressly relates only to an earlier and/or specified date, in which case they are such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date), (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements in form for filing and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate setting forth pro forma compliance with the financial covenants as of the last day of the fiscal quarter of DSW Borrower most recently ended for which financial statements have been delivered prior to the Closing Date, signed by an Authorized the Chief Executive Officer, President, Chief Financial Officer or Chief Accounting Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated herebyhereby and all regulatory approvals and licenses necessary for the financing have been completed;
(viii) [Reserved];
(ix) Evidence that the Existing Loan Agreement has been terminated, A Lien search in reasonably acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A duly completed perfection certificate in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from No material adverse change to information previously supplied to the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementAdministrative Agent;
(xii) [Reserved]
(xiii) [Reserved]; and
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement and Security Agreement (Paylocity Holding Corp), Credit Agreement (Paylocity Holding Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited consolidated financial statements of the Borrower delivered to the Administrative Agent except as set forth on Schedule 6.1.6;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(viii) A Lien search in acceptable scope and with acceptable results;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder deposit accounts have been paid and all Liens securing such obligations have been released;opened at PNC for the purpose of paying the Obligations; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Steel Partners Holdings L.P.), Term Loan Facility (Handy & Harman Ltd.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and the Lead Arrangers:
(i) A a certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all the representations and warranties of the Loan Parties set forth Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects (or in all respects if such representation or warranty is qualified by Material Adverse Change or other materiality qualifier) on and as of the Closing Date, Date (except to the extent that any such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar importexpressly relate to an earlier date, in which case they are such representations and warranties shall be true and correct in all respects, material respects (wor in all respects if such representations or warranties are qualified by Material Adverse Change or other materiality qualifier) the Loan Parties are in compliance with each as of the covenants and conditions hereundersuch earlier date), (x) no Potential Default or Event of Default or Potential Default exists, and (y) no there has not occurred any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to cause a Material Adverse Change has occurred since January 30February 2, 20102025 and (z) the conditions stated in this Section 7.1 and Section 7.2 [Each Loan or Letter of Credit] (with respect to Section 7.2 [Each Loan or Letter of Credit], only if Loans or Letters of Credit will be issued on the Closing Date) have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary an Authorized Officer or an Assistant Secretary Authorized Officers (as applicable) of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with the Borrower to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state governmental official where such documents are filed in a state governmental office together with certificates from the appropriate state governmental officials as to due organization and the continued valid existence and good standing in the jurisdiction of each Loan Party in each state where organized or qualified to do business;its organization.
(iviii) This this Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer the parties thereto;
(iv) written opinion of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentscounsel for the Borrower, instruments and agreements evidencing dated the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;Closing Date; and
(v) A written opinion of if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), the Administrative Agent and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPLender shall have received, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory acceptable to the Administrative Agent and its counsel naming each Lender, an executed Certificate of Beneficial Ownership at least five (5) Business Days prior to the Administrative Agent Closing Date (to the extent requested at least seven (7) days (or such shorter period as additional insured and lender loss payee;
(viithe Borrower may agree) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request).
Appears in 2 contracts
Sources: Credit Agreement (Pure Storage, Inc.), Credit Agreement (Pure Storage, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (v) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change Effect has occurred since January 30, 2010the date of the Audited Financial Statements of the Borrower delivered to the Administrative Agent and (z) the Rating of the Borrower by each Rating Agency (provided that no confirmation by the Rating Agencies shall be required);
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each the state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower (which may be inhouse counsel with respect to Ohio law), each dated as of the Closing Date and opining as Date, addressed to the matters set forth in Schedule 6.1.1Administrative Agent and each Lender;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material governmental consents required to effectuate the transactions contemplated herebyhereby (or certification from the Borrower there are no such consents);
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiivii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Dayton Power & Light Co), Third Amended and Restated Credit Agreement (Dayton Power & Light Co)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the their representations, warranties, covenants and conditions hereunder, (x) the absence of any material litigation, and no Potential Default or Event of Default existsor, to the best of its knowledge, Potential Default exists and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viivi) A duly completed Compliance Certificate closing date compliance certificate, in form and substance reasonably satisfactory to the Administrative Agent, dated as of the last day of the fiscal quarter of DSW Borrowers most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrowers;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Credit Agreement has been terminatedterminated or will be terminated concurrently with the execution of this Agreement, and all outstanding obligations and commitments thereunder have been paid paid;
(ix) A Lien search in acceptable scope and all Liens securing such obligations have been released;with acceptable results; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Revolving Credit Facility (Finish Line Inc /In/), Revolving Credit Facility Credit Agreement (Finish Line Inc /In/)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following documents, instruments and agreements, each of which shall be in form and substance reasonably satisfactory and executed in such counterparts as shall be acceptable to Administrative Agent and Required Banks and each of which shall, unless otherwise indicated, be dated on or prior to the Administrative AgentEffective Date:
(i) A certificate a Note payable to the order of each Bank in the amount of such Bank’s Commitment, duly executed and delivered by Borrower;
(ii) a Borrower Pledge Agreement duly executed and delivered by Borrower together with (A) certificates evidencing one hundred percent (100%) of the Loan Parties signed issued and outstanding Equity of GeoMet Operating and each other existing Domestic Subsidiary, which certificates shall be duly endorsed or accompanied by stock powers executed in blank (as applicable), and (B) such financing statements as Administrative Agent shall request to evidence and perfect the Liens granted pursuant to such Borrower Pledge Agreement;
(iii) a Facility Guaranty duly executed and delivered by GeoMet Operating and each existing Domestic Subsidiary of Borrower;
(iv) the Amendments to Mortgages duly executed and delivered by Borrower and Administrative Agent, together with such other assignments, conveyances, amendments, agreements and other writings, including, without limitation, UCC-1 financing statements and UCC-3 assignments and amendments, in form and substance satisfactory to Administrative Agent;
(v) a certificate, dated as of the Effective Date, executed by an Authorized Officer of each BorrowerBorrower stating that, dated to his knowledge, (A) the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth contained in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they other Loan Papers are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xB) no Potential Default or Event of Default existshas occurred which is continuing, and (yC) no Material Adverse Change has occurred since January 30, 2010all conditions set forth in this Section 6.1 and Section 6.2 have been satisfied;
(iivi) A Simplified Borrowing Base Certificate prepared a copy of the articles or certificate of incorporation or comparable charter documents, and all amendments thereto, of each Credit Party that is a party to any Loan Paper, accompanied by a certificate that such copy is true, correct and complete, issued by the appropriate Governmental Authority of the jurisdiction of incorporation or organization of each such Credit Party, and accompanied by a certificate of the Secretary, Assistant Secretary or comparable Authorized Officer of each such Credit Party that such copy is true, correct and complete as of the Closing Date in substantially date hereof;
(vii) a copy of the form bylaws or comparable charter documents, and all amendments thereto, of Exhibit 7.3.4.1each Credit Party that is a party to any Loan Paper, showing accompanied by a certificate of the sum Secretary, Assistant Secretary or comparable Authorized Officer of Revolving each such Credit Availability plus Party that such copy is true, correct and complete as of the Borrowers’ cash date hereof;
(viii) certain certificates and cash equivalents then on hand, in each case after giving effect other documents issued by the appropriate Governmental Authorities of such jurisdictions as Administrative Agent has requested relating to the Loans existence of each Credit Party that is a party to any Loan Paper and to the effect that each Credit Party is in good standing with respect to the payment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(ix) a certificate of incumbency of the officers of each Credit Party (to the extent a party to any Loan Paper) who will be made on authorized to execute or attest to any Loan Paper, dated the Closing Date date hereof, executed by the Secretary, Assistant Secretary or comparable Authorized Officer of each such Credit Party (as applicable); and
(x) copies of resolutions or comparable authorizations approving the Loan Papers and consummation of authorizing the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) Papers, duly adopted by the names Board of Directors, partners or comparable authority of each Credit Party a party to any Loan Paper, accompanied by certificates of the Authorized Officers authorized to sign the Loan Documents Secretary, Assistant Secretary or comparable officer of each such Credit Party (as applicable) that such copies are true and their true signatures; and (c) correct copies of its organizational resolutions duly adopted in accordance with the charter documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateralsuch Credit Party, and evidence of filing of that such resolutions constitute all Collateral Documents as may be necessary the resolutions adopted with respect to reflect valid such transactions, have not been amended, modified, or revoked in any respect, and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is are in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate effect as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requesthereof.
Appears in 2 contracts
Sources: Credit Agreement (GeoMet, Inc.), Credit Agreement (GeoMet, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence ;
(iv) A written opinion of filing of all Collateral Documents as may be necessary counsel for the Loan Parties acceptable to reflect valid and perfected first priority Liens Administrative Agent in the Collateralits reasonable discretion;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xiix) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement; and
(xiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Crocs, Inc.), Credit Agreement (Crocs, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects, except for representations and warranties which (A) specifically refer to an earlier date which shall have been true and correct in all material respects as of the Closing Datesuch earlier date referred to therein, except to the extent such representations and warranties (B) are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in materiality which case they are will be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, (y) the Loan Parties are in compliance with ERISA and applicable labor laws, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party the parties thereto and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date in form and opining as substance acceptable to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing DateDate for which financial statements have been delivered under the Existing Credit Agreement, signed by an Authorized Officer of DSWBorrower, evidencing pro forma compliance with the financial covenants as of the Closing Date (after giving effect to the transactions occurring on the Closing Date and the consummation of the Project Vitality Acquisition);
(viiivii) All material consents consents, regulatory approvals and licenses required to effectuate the transactions contemplated hereby;
(viii) Absence of any legal or regulatory prohibitions or restrictions in connection with the transactions contemplated hereby;
(ix) Evidence that Absence of any Material Adverse Change from the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedinformation previously delivered to the Administrative Agent in connection with the transactions contemplated hereby;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (A Lien search in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for each leased Collateral location requested by the fulfillment center and the main distribution center as required under the Security Agreement; andAdministrative Agent;
(xii) Receipt of the Loan Parties’ most recent audited financial statements, prepared in accordance with GAAP;
(xiii) Evidence that any existing credit agreements, and the obligations thereunder have been paid in full and, if applicable, all liens and security interests related thereto shall have been released;
(xiv) Receipt of documentation and other information as requested by the Administrative Agent or any Lender in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act;
(xv) Within three (3) Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Beneficial Ownership Certification and such other documentation and other information requested in connection with applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(xvi) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Helios Technologies, Inc.), Credit Agreement (Helios Technologies, Inc.)
Deliveries. On the Closing DateMerger Subsidiary, the Administrative Agent WTI or WTC, as appropriate, shall have received each of the following in form executed and substance reasonably satisfactory delivered to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & or the Principals:
a. Certified copies of resolutions of each of Merger Subsidiary's, WTI's and WTC's board of directors authorizing the execution of this Agreement and each other Transaction Document to which Merger Subsidiary, WTI or WTC is a party and, in the case of WTC, the issuance of the shares of Common Stock in the Merger;
b. A copy of the charter and current bylaws of Merger Subsidiary, WTI and WTC, which, in the case of the charters and certificates, are certified as of a recent date by the Secretary of State of Delaware;
c. A certificate of the Secretary of each of Merger Subsidiary, WTI and WTC certifying that the resolutions, charters and bylaws in paragraphs (a) and (b) above are in full force and effect and have not been amended or modified, and that the officers of Merger Subsidiary, WTI and WTC are those persons named in the certificate;
d. A certificate issued by the Secretary of State of Delaware certifying that Merger Subsidiary, WTI and WTC are validly existing in Delaware as of the most recent practicable date;
e. True and correct copies of each other Transaction Document to which Merger Subsidiary, WTI or WTC is a party;
f. An opinion from counsel to Merger Subsidiary, WTI and WTC in the form of Exhibit 10.3(f);
g. A copy of the Form D to be filed with the SEC with respect to the issuance of the shares of Common Stock and of any similar filing or notification of filing that will be filed with any applicable state securities department;
h. WTI shall execute the BCT Agreement in favor of the Non-▇▇▇▇▇▇▇▇▇ LLPMembers; provided, counsel for however, that it shall not be a condition precedent to Closing that the Loan PartiesNon-▇▇▇▇▇▇▇▇▇ Members shall have executed such agreement; and
i. A copy of an appraisal of the fair market value of the Principals' Interest performed by Valuation Econometrics, each dated LLC, or another appraisal firm reasonably acceptable to WTC, as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended a date within 10 days prior to the Closing Date. In addition, signed by an Authorized Officer of DSW;
(viii) All material consents required WTC shall have delivered the merger consideration to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been be paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestat Closing.
Appears in 2 contracts
Sources: Merger Agreement (Wilmington Trust Corp), Merger Agreement (Wilmington Trust Corp)
Deliveries. On The Purchasers must have received the following:
(a) certificates representing the Purchased Securities (to the extent any Purchased Securities are certificated) duly endorsed in blank for transfer, or accompanied by irrevocable security transfer powers of attorney duly executed in blank, in either case, by the holders of record, together with evidence satisfactory to the Purchasers that the applicable Purchaser has been entered upon the books of the Target Companies as the holder of the Purchased Securities;
(b) the certificates referred to in Section 6.1(1) and Section 6.1(2);
(c) the duly executed Resignations, in form and substance reasonably acceptable to Purchasers;
(d) a “good standing” certificate (or equivalent) for each of the Target Companies (to the extent such concept is applicable to said entity) and a copy of the articles of incorporation and all amendments thereto (or comparable document) of each of the Target Companies, in each case certified by the relevant officer of the jurisdiction of organization of such Person, each dated as of a date within five Business Days before the Closing Date, the Administrative Agent shall have received ;
(e) a certificate from each of Shred-it and Shred-it US Holdco Inc. prepared in accordance with the following applicable regulations under Treasury Regulations under Section 1445 and Section 897, in form and substance reasonably satisfactory to the Administrative Agent:Purchasers, duly executed and acknowledged, certifying any facts that would exempt the transactions contemplated hereby from withholding under Section 1445 of the Code;
(f) the Agreement Regarding Shared Contracts and Consent Contracts (in the form attached hereto as Exhibit G), duly executed by each of Shred-it, Cintas Corporation No. 2, a corporation incorporated under the Laws of the State of Nevada, and Cintas Parent;
(g) the Indemnity Escrow Agreement, duly executed by Vendors’ Representative;
(h) evidence that all the outstanding stock options issued by Boost GP have been duly exercised by the Option Participants; and
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Boost GP Note and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestBoost Holdings Note.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cintas Corp), Securities Purchase Agreement (Stericycle Inc)
Deliveries. On the Closing DateDate (except as expressly set forth below), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change has occurred since January 30, 2010;the date of the last audited financial statements of the Borrower delivered to the Administrative Agent.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (or a certification that there have been no changes to the organizational documents since last delivered to the Administrative Agent), together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral; provided that the Loan Parties agree to take all action to perfect, and evidence at the Loan Parties’ cost, the Administrative Agent’s lien in sixty five percent (65%) of filing the equity in first tier Foreign Subsidiaries pursuant to the Pledge Agreement within ninety (90) days after the Closing Date or such longer period of all Collateral Documents as may be necessary time agreed to reflect valid and perfected first priority Liens in by the Collateral;Administrative Agent.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;6.1(a).
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;.
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrower;
(viiivii) All Copies of all material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory with results acceptable to the Administrative Agent (showing the Liens in each case dated as favor of a date reasonably satisfactory to the Administrative Agent) indicating Agent to be a Prior Security Interest, provided that the absence Loan Parties agree to provide the Administrative Agent with a Lien search of Liens on the assets real properties owned by any of the Loan PartiesParties or their Subsidiaries within ninety (90) days of the Closing Date, showing no Liens against any such real estate except for Permitted Liens Liens;
(ix) Use commercially reasonable efforts to obtain an executed landlord’s waiver in form and Liens for which termination statements and releases reasonably satisfactory substance acceptable to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person lessor for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement; and
(xiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Gsi Commerce Inc), Credit Agreement (Gsi Commerce Inc)
Deliveries. On the Closing DateA. In connection with UMBFS’ appointment as sub-transfer agent and dividend disbursing agent, the Administrative Agent SEI shall have received each of deliver or cause the following in form and substance reasonably satisfactory documents to the Administrative Agentbe delivered to UMBFS:
(i1) A copy of the Declaration of Trust and By-laws of the Trust and all amendments thereto, certified by the Secretary of the Trust;
(2) A certificate of each signed by the President and Secretary of the Loan Parties Trust specifying the number of authorized Shares and the number of such authorized Shares issued and currently outstanding, if any, the validity of the authorized and outstanding Shares, whether such shares are fully paid and non-assessable, and the status of the Shares under the Securities Act and any other applicable federal law or regulation;
(3) A certified copy of the resolutions of the Board of Trustees of the Trust appointing SEI as transfer agent and dividend disbursing agent;
(4) Copies of the Trust’s Registration Statement, as amended to date, and the most recently filed Post-Effective Amendment to the Trust’s Registration Statement, filed by the Trust with the Securities and Exchange Commission (the “SEC”) under the Securities Act and the 1940 Act, together with any applications filed in connection therewith;
(5) The certificate required by Section 8.01 of this Agreement, signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties officer of the Loan Parties set forth in this Agreement are true Trust and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) designating the names of the Trust’s initial Authorized Officers authorized to sign the Loan Documents and their true signaturesPersons; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;and
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v6) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated certificate as of a date reasonably satisfactory agreed upon by the parties to the Administrative Agent) indicating the absence of Liens on the assets this Sub-TA Agreement certifying that all accounts have been reconciled through such date.
B. SEI agrees to deliver or to cause to be delivered to UMBFS in Milwaukee, Wisconsin, at SEI’s expense, all of the Loan PartiesTrust’s Shareholder account records in a format acceptable to UMBFS, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such well as all other documents, instruments records and agreements in connection with such transactions as the Administrative Agent or its counsel information that UMBFS may reasonably requestrequest in order for UMBFS to perform the Services hereunder.
Appears in 2 contracts
Sources: Sub Transfer Agency Agreement (Community Reinvestment Act Qualified Investment Fund), Sub Transfer Agency Agreement (Community Reinvestment Act Qualified Investment Fund)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or Secretary, an Assistant Secretary or other Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iii) Copies of the duly executed Senior Secured Notes with a principal amount of at least $150,000,000 and the associated Senior Secured Note Indenture;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralstatements;
(v) The Intercreditor Agreement duly executed by each party thereto;
(vi) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(vivii) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(vii) A duly completed Compliance Certificate as , and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the last day Administrative Agent, for the benefit of the fiscal quarter of DSW most recently ended Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to the Closing Datesuch property, signed by an Authorized Officer of DSWstructures and contents becoming Collateral;
(viii) Delivery of pro forma projections (including a pro forma closing balance sheet, pro forma statements of operations and cash flow) for the years 2012 through 2017, including assumptions used in preparing the forecast financial statements, satisfactory to the Administrative Agent;
(ix) All material consents required to effectuate the transactions contemplated hereby;
(ixx) Evidence that each existing financing arrangement with any of the Existing Loan Agreement has Parties as set forth on Schedule 7.1 have been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released or have been agreed to be promptly released;
(xxi) Results A Lien search in acceptable scope and with acceptable results;
(xii) The PNC Blocked Account Control Agreement signed by an Authorized Officer and all documentation requested by PNC relating to opening of searches or the Blocked Account thereto;
(xiii) The PNC Sweep Account Control Agreement signed by an Authorized Officer and all documentation requested by PNC relating to opening of the deposit account subject thereto;
(xiv) Any other Deposit Account Control Agreement signed by an Authorized Officer, and each Depository and evidence reasonably of the deposit account subject thereto;
(xv) A duly completed Borrowing Base Certificate as of the Closing Date, signed by an Authorized Officer of Borrower and demonstrating Undrawn Availability of at least $20,000,000;
(xvi) A duly completed (a) Schedule of Accounts, (b) Schedule of Inventory, and (c) Schedule of Payables;
(xvii) A review of the amount and nature of all tax, employee retirement benefit, labor contracts and relations, environmental and all other contingent liabilities (including any litigation) to which the Loan Parties may be subject;
(xviii) Evidence that the Borrower has sufficient mine bonding capacity to conduct their operations as projected in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent;
(xix) The Authorized Officer of each Loan Party, acting in their capacities as such officers, shall have delivered a certificate in form and substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence solvency of Liens on the assets of the each Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Party after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementtransactions contemplated hereby; and
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Armstrong Coal Company, Inc.), Credit Agreement (Armstrong Energy, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing including a pledge of all Collateral Documents as may be necessary to reflect valid of the equity in Hourglass Sands and perfected first priority Liens in the Collateral;High Point.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;7.1.1.
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral.
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material consents consents, approvals and licenses required to effectuate the transactions contemplated hereby;.
(vii) All lessor consents allowing for, among other things, a Lien to be obtained upon any lease of the Borrower of the Real Property, from the lessors of such lease, as required by the Administrative Agent, in its sole discretion, to have such consents, which such consents shall be in form and substance acceptable to the Administrative Agent (the “Lessor Consents”).
(viii) To permit the refinancing by the Lenders of the loans outstanding under the 2014 Credit Agreement, (1) the Borrower shall request Loans in an amount sufficient to refinance the loans under the 2014 Credit Agreement by delivering to the Administrative Agent an appropriately completed irrevocable Loan Request not later than 11:00 a.m., on the first Borrowing Date (which shall be the Closing Date) pursuant to which Loans (to which the Base Rate Option applies) are requested; and (2) contemporaneously with the execution and effectiveness of this Agreement and utilizing a portion of the proceeds of the Loans, the Borrower shall pay in full all amounts outstanding under the 2014 Credit Agreement, including all unpaid principal, interest, breakage fees and all other fees and charges thereunder in order to accomplish the amendment and restatement thereof as of the Closing Date. Each Lender that was a bank under the 2014 Credit Agreement, by execution of this Agreement, waives all notice of prepayment of loans and all notice of termination of the commitments under the 2014 Credit Agreement, and consents to such termination and prepayment. In the event that the Borrower submits a Loan Request hereunder, then the Borrower agrees to indemnify the Lenders for any and all liabilities, losses, or expenses arising therefrom in accordance with the standards set forth in Section 5.10 [Indemnity], regardless of whether this Agreement has become effective.
(ix) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;with acceptable results.
(x) Results of searches Evidence that after giving effect to the transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity (or other evidence reasonably security available for the issuance of permits, including without limitation, letters of credit) to conduct its operations as contemplated in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent.
(xi) Evidence that all of Required Mining Permits with respect to the Loan Parties are in full force and effect in accordance with their terms.
(xii) Audited financial statements of Borrower for the fiscal year ended December 31, 2017, prepared in accordance with GAAP and consolidating schedules for the balance sheet, statement of income, retained earnings and cash flow of the Borrower certified (subject to normal year-end audit adjustments and without footnotes) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, all as more fully described in Section 8.3.2 [Annual Financial Statements].
(xiii) The projected pro-forma financial projections (including balance sheets and statements of operations and cash flows) of the Borrower for each fiscal year from 2018 through 2021, which shall be satisfactory to the Administrative Agent (including all assumptions).
(xiv) Completion of all necessary FEMA flood zone diligence requirements.
(xv) Satisfactory completion and receipt of all third-party due diligence items, including, but not limited to the Energy Ventures Market Study, each in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent.
(xvi) indicating the absence An Authorized Officer of Liens on the assets of the each Loan PartiesParty, except for Permitted Liens acting in their capacities as such officers, shall have delivered a certificate in form and Liens for which termination statements and releases reasonably substance satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory as to the capital adequacy and solvency of each Loan Party after giving effect to the transactions contemplated hereby.
(xvii) A review of the amount and nature of all tax, ERISA, employee retirement benefit, environmental and all other contingent liabilities to which the Loan Parties may be subject.
(xviii) The Administrative Agent for and each Lender shall have received, in form and substance acceptable to Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the delivery of such termination statements and releases have been made;USA Patriot Act.
(xixix) An executed Collateral Access Agreement or other lien waiver agreement from A duly completed Compliance Certificate dated as of the lessor, or other applicable Person for Closing Date pursuant to which Borrower certifies that it shall be in compliance on a Pro Forma Basis with the fulfillment center covenants contained in Section 8.2.15 [Minimum Debt Service Coverage Ratio] and Section 8.2.16 [Maximum Leverage Ratio] upon the main distribution center as required under closing and funding of the Security Agreement; andLoans hereunder.
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Hallador Energy Co), Credit Agreement (Hallador Energy Co)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, hereunder and under the Loan Documents and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent and (z) the conditions stated in this Section 7.1 and Section 7.2 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cD) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock the parties thereto;
(iv) Appropriate transfer powers and stock or other certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion Written opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Delaware and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWB▇▇▇▇▇▇▇;
(viii) All material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(x) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Lien searches in acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and[reserved];
(xii) Such other documents, instruments A certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xiii) The Statements and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.Projections; 74
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower on behalf of itself and the other Loan Parties signed by an Authorized Officer of each the Borrower, dated as of the Closing Date stating that (vA) all representations and warranties of the Loan Parties set forth in this Agreement and each other Loan Document are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement by “materiality” reference to materiality or “Material Adverse Change” or words of similar import, in which case they are Effect shall be true and correct in all respects, as of the Closing Date (wor, if such representation or warranty makes reference to an earlier date, as of such earlier date), (B) no Event of Default or Default exists or is continuing as of the Closing Date, (C) except as are permitted to be delivered on a post-closing basis pursuant to Section 6.15, all Governmental Authority authorizations required with respect to the execution, delivery or performance of this Agreement and the other Loan Documents by the Loan Parties have been received, (D) there has occurred no Material Adverse Effect, (E) the Loan Parties are in compliance on a Pro forma Basis with the financial covenant set forth in Section 8.1 and attaching the calculation showing such compliance thereto and (F) each of the covenants and Loan Parties has satisfied each of the other closing conditions required to be satisfied by it hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesParties and Shenandoah Telephone Company, certifying as appropriate as to: (aA) all corporate or limited liability company action taken by each Loan Party and Shenandoah Telephone Company in connection with the authorization of this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents on behalf of each Loan Party and Shenandoah Telephone Company and their true signatures; and (cC) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party and Shenandoah Telephone Company in each state where organized organized;
(iii) evidence that there is no action, suit, proceeding or qualified investigation pending against, or threatened in writing against, any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to do businessresult in a Material Adverse Effect;
(iv) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A a customary written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30December 31, 2010;2012.
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or an Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state or foreign jurisdiction official where such documents are filed in the appropriate state or foreign jurisdiction office (or confirmation that no changes have been made to the organizational documents delivered to the Administrative Agent on the Initial Closing Date or the date on which such Loan Party joined the Credit Agreement as a state office Borrower or a Guarantor, as applicable), together with certificates from the appropriate state officials as to the continued existence and good standing of each Domestic Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and Officer, all appropriate financing statements and statements, appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged CollateralCollateral and deposit account control agreements, in form and evidence substance reasonably satisfactory to the Administrative Agent, with respect to each deposit account of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDomestic Loan Parties;
(viv) A written opinion Written opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Domestic Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWReserved;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(viii) Reserved;
(ix) Evidence that Domestic Lien searches in acceptable scope and with acceptable results listing all of the Existing effective financing statements filed against any Domestic Loan Agreement has been terminatedParty, and all outstanding obligations thereunder have been paid and all Liens securing together with copies of such obligations have been released;financing statements; and
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the their representations, warranties, covenants and conditions hereunder, (x) hereunder and no Potential Default or Event of Default exists, or Potential Default exists and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1(a);
(viv) Evidence that adequate insurance, including flood insurance if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower, demonstrating pro forma compliance with the financial covenants contained in this Agreement;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Credit Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations and commitments have been released;
(ix) A Lien search in acceptable scope and with acceptable results for each Loan Party;
(x) Results Evidence of searches or other evidence reasonably casualty and liability insurances for each of the Loan Parties, together with mortgagee, lender loss payee and additional insured endorsement in favor of the Lenders, all of which shall be acceptable to the Administrative Agent;
(xi) The Chief Financial Officer of the Borrower shall have delivered a certificate in form and substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets capital adequacy and solvency of the Loan Parties, except for Permitted Liens Borrower and Liens for which termination statements and releases reasonably satisfactory its Subsidiaries after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madetransactions contemplated hereby;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Revolving Credit Agreement (Superior Well Services, INC)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A this Agreement and each of the other Loan Documents duly executed by the parties thereto;
(ii) a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vx) all representations and warranties of the Loan Parties set forth since December 31, 2022, no event, circumstance or condition has occurred or exists that has resulted in this Agreement are true and correct or could be reasonably expected to result in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “a Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, Effect and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the conditions stated in Section 6.2 [Each Loan or Letter of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Credit] have been satisfied;
(iii) A a certificate dated the Closing Date and signed by [the Secretary or an Assistant Secretary Secretary] of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iv) This Agreement and each a Perfection Certificate in the form of the other Loan Documents signed Exhibit G-1 duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralParty;
(v) A written subject to Section 7.15 [Post-Closing Obligations], all certificates, agreements or instruments representing or evidencing the Securities Collateral (as defined in the Security Agreement) and any Marketable Security (as defined in the Australian Pledge Agreement) accompanied by instruments of transfer and stock powers undated and endorsed in blank have been delivered to the Administrative Agent;
(vi) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other filings and documents under applicable requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of each the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Security Agreement and the Australian Pledge Agreement;
(vii) the Intercompany Note;
(viii) an intercreditor agreement among the Borrower, the Administrative Agent and the agent for the Existing Securitization Facility attached as Exhibit I hereto (the “PLRC Intercreditor Agreement”);
(ix) written opinions of (i) Jones Day, as New York and Illinois counsel for the Loan Parties, (ii) Ashurst LLP, as Australian counsel to the Administrative Agent and (iii) Dentons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as Indiana local counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vix) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender lenders loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender lenders loss payee;
(viixi) A duly completed Compliance Certificate as Lien searches in acceptable scope and with acceptable results;
(xii) a certificate of an Authorized Officer of the last day Borrower as to the Solvency of the fiscal quarter Borrower and its Subsidiaries taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xiii) the Statements and the Projections; and
(xiv) the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of DSW most recently ended Beneficial Ownership and such other documentation and other information requested (solely to the extent requested at least ten (10) Business Days (or such shorter period as the Borrower may agree) prior to the Closing Date) in connection with applicable “know your customer” and anti-money laundering rules and regulations, signed by an Authorized Officer of DSWincluding the USA PATRIOT Act.
(xv) each original share certificate for all the issued shares in Peabody Australia Holdco Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇;
(viiixvi) All material consents required to effectuate each original share certificate for all the transactions contemplated herebyissued shares in Wilpinjong Coal Pty Ltd ACN 104 594 694;
(ixxvii) Evidence that each original blank share transfer form executed by each relevant shareholder sufficient to transfer all of its legal and beneficial interest in the Existing Loan Agreement has been terminatedabove shares, with the name of the transferee, the consideration and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedthe date left blank;
(xxviii) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets certified copy of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to share register of Peabody Australia Holdco Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇ indicating that the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeshareholders hold all issued shares in Peabody Australia Holdco Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇;
(xixix) An a certified copy of the share register of Wilpinjong Coal Pty Ltd ACN 104 594 694 indicating that the shareholders hold all issued shares in Wilpinjong Coal Pty Ltd ACN 104 594 694;
(xx) a certified fully executed Collateral Access Agreement copy of constitution of Peabody Australia Holdco Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇;
(xxi) a certified fully executed copy of constitution of Wilpinjong Coal Pty Ltd ACN 104 594 694;
(xxii) evidence that the constitution of Peabody Australia Holdco Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇ has been amended in such a manner as the Lenders requires, including so as to ensure that the Lenders or other lien waiver agreement from its nominee can become registered as the lessor, or other applicable Person for holder of all shares of Peabody Australia Holdco Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇ the fulfillment center and subject of the main distribution center as required under secured interest in the Security Agreementevent of the enforcement of the secured property; and
(xiixxiii) Such other documents, instruments and agreements evidence that the constitution of Wilpinjong Coal Pty Ltd ACN 104 594 694 has been amended in connection with such transactions a manner as the Administrative Agent Lenders requires, including so as to ensure that the Lenders or its counsel may reasonably requestnominee can become registered as the holder of all shares of Wilpinjong Coal Pty Ltd ACN 104 594 694 the subject of the secured interest in the event of the enforcement of the secured property.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vx) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except (or in all respects with regard to the extent such representations and warranties are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects), (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30December 31, 20102023;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified (if obtainable by the Closing Date) by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party thereto and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Freshfields US LLP, as counsel for the Loan PartiesParties party, each dated as of the Closing Date Date, in form and opining as substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWthe Borrower, demonstrating on a pro forma basis (a) compliance with the financial covenants herein (assuming for purposes of the Secured Debt Net Leverage Ratio that the Loans borrowed on the Closing Date were borrowed on the last day of such fiscal quarter);
(vii) Unaudited financial statements of the Borrower for the period ended June 30, 2024, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related consolidated statements of income, stockholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year;
(viii) Receipt of and satisfaction by the Lenders with the annual budget of the Borrower for fiscal year 2024, together with all assumptions used in preparing such budget;
(ix) The Administrative Agent shall have received the annual financial projections for the Borrower and its consolidated Subsidiaries for the years 2024 through 2028 (including the assumptions used in preparing such projections), in form and substance reasonably acceptable to the Administrative Agent;
(x) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeif any;
(xi) [Reserved];
(xii) L▇▇▇, tax and judgment searches in acceptable scope and with results reasonably acceptable to the Administrative Agent;
(xiii) An executed Collateral Access Agreement or other lien waiver agreement from Certificate of Beneficial Ownership (to the lessor, or other applicable Person for the fulfillment center and the main distribution center as extent required under applicable Law) and such other documentation and other information requested in connection with applicable “know-your-customer” and anti-money laundering rules and regulations, including the Security AgreementUSA Patriot Act; and
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, no litigation which is materially adverse to the Borrower and (y) its Subsidiaries, taken as a whole, exists, no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrower delivered to the Administrative Agent, 2010and the Borrower is Solvent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto effect in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeecounsel;
(viivi) A duly completed Compliance Certificate dated as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrower which includes reasonably satisfactory evidence of pro forma compliance with the Debt/EBITDA Ratio and Consolidated Interest Coverage Ratio as of June 30, 2017;
(vii) A Lien search in acceptable scope and with acceptable results;
(viii) All material consents consents, approvals and licenses required to effectuate the transactions contemplated herebyhereby have been obtained;
(ix) Evidence The projected financial projections (including balance sheets, statements of operations and cash flows) of the Borrower for the 2017 through 2021 fiscal years, it being understood that the Existing Loan Agreement has been terminatedsuch projections are not to be viewed as facts, actual results may vary from such projections and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedvariations may be material;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated The consolidated and consolidating audited year-end financial statements for and as of a date reasonably satisfactory to the Administrative Agentthree (3) indicating the absence of Liens on the assets fiscal years ended December 31, 2016 of the Loan PartiesBorrower, except together with (i) unaudited interim financial statements for Permitted Liens the most recently ended fiscal quarter and Liens for which termination a comparison against the current year-to-date financial statements and releases reasonably satisfactory to (ii) copies of the Administrative Agent are being tendered concurrently with unqualified reports of independent certified public accounts that conducted such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeannual audits;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from Evidence that after giving effect to the lessortransactions contemplated by the Loan Documents, or other applicable Person for the fulfillment center Borrower has a sufficient mine bonding capacity to conduct its operations as projected in accordance with the financial projections of the Borrower and its Subsidiaries provided to the main distribution center as required under the Security AgreementAdministrative Agent; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
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Deliveries. On the Closing DateFunding Date (or at such other time as provided in this Section 7.2), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Funding Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 20102020 (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) there is no action, suit, investigation or proceeding pending, or to the knowledge of the Borrower, threatened in any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the conditions stated in this Section 7.2 and Section 7.3 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Funding Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Funding Date, to the extent applicable, certified as of a sufficiently recent date prior to the Funding Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization;
(iii) to the extent not delivered on the Funding Date, each state where organized or qualified to do businessof the Loan Documents duly executed by the parties thereto;
(iv) This Agreement and each written opinion(s) of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Funding Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence on or prior to the Funding Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(viivi) A a duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW Holdings most recently ended prior to the Closing Funding Date, signed by an Authorized Officer of DSWthe Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Funding Date and the Transactions on a Pro Forma Basis, (A) the Consolidated Total Net Leverage Ratio does not exceed 3.20 to 1.00 and (B); the Loan Parties are in compliance with Section 9.12.
(vii) all material consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(ix) indicating receipt by the absence of Liens on the assets Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan PartiesParty;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to deemed unnecessary by the Administrative Agent for in its reasonable discretion under the delivery Law of the jurisdiction of organization of such termination statements Person);
(D) searches of ownership of, and releases have been made▇▇▇▇▇ on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(x) a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center Statements and the main distribution center as required under the Security Agreement; andProjections;
(xii) Such [reserved];
(xiii) the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act;
(xiv) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
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Deliveries. On the Closing DateFunding Date (or at such other time as provided in this Section 7.2), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Funding Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 20102020 (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) there is no action, suit, investigation or proceeding pending, or to the knowledge of the Borrower, threatened in any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the conditions stated in this Section 7.2 and Section 7.3 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Funding Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Funding Date, to the extent applicable, certified as of a sufficiently recent date prior to the Funding Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization;
(iii) to the extent not delivered on the Funding Date, each state where organized or qualified to do businessof the Loan Documents duly executed by the parties thereto;
(iv) This Agreement and each written opinion(s) of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Funding Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence on or prior to the Funding Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(viivi) A a duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW Holdings most recently ended prior to the Closing Funding Date, signed by an Authorized Officer of DSWthe Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Funding Date and the Transactions on a Pro Forma Basis, (A) the Consolidated Total Net Leverage Ratio does not exceed 3.20 to 1.00 and (B); the Loan Parties are in compliance with Section 9.12.
(vii) all material consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(ix) indicating receipt by the absence of Liens on the assets Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan PartiesParty;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to deemed unnecessary by the Administrative Agent for in its reasonable discretion under the delivery Law of the jurisdiction of organization of such termination statements Person);
(D) searches of ownership of, and releases have been made▇▇▇▇▇ on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(x) a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center Statements and the main distribution center as required under the Security Agreement; andProjections;
(xii) Such [reserved];
(xiii) the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act;
(xiv) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Company signed by an Authorized Officer of each Borrowerthe Company, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default exists, or Potential Default exists and (yD) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Consolidated Subsidiaries which could reasonably be expected to have a Material Adverse Change has occurred since January 30, 2010Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Director of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (or foreign jurisdictional equivalent in each jurisdiction where such certification is required) of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion Opinions of counsel for each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPthe Borrowers, counsel for dated the Loan PartiesClosing Date, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory acceptable to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeLenders;
(viiv) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Company most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Company;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ixvi) Evidence that the Existing Loan Credit Agreement dated as of January 5, 2011, among the Borrowers, the other foreign borrowers a party thereto, the lenders a party thereto and PNC, as administrative agent, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(xvii) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the A completed and executed Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement Request from the lessorBorrowers in substantially the form of Exhibit 2.5.1 and, or other applicable Person for if applicable, Swing Loan Request from the fulfillment center and Borrowers in substantially the main distribution center as required under the Security Agreementform of Exhibit 2.5.2; and
(xiiviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Parent signed by an Authorized Officer of each Borrowerthe Parent, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respectscorrect, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xb) no Potential Default or Event of Default exists, or Potential Default exists and (yc) no Material Adverse Change has shall have occurred since January 30December 31, 20102015;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each its state where organized or qualified to do businessof organization;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date for the benefit of the Administrative Agent and opining as to the matters set forth in Schedule 6.1.1each Lender;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent Agent;
(vi) Lien searches in acceptable scope and its counsel naming with results to the reasonable satisfaction of the Administrative Agent as additional insured and lender loss payeeAgent;
(vii) Evidence that all Indebtedness not permitted under Section 8.2.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens (other than Permitted Liens) have been filed or satisfactory arrangements have been made for such filing (including payoff letters, if applicable, in form and substance reasonably satisfactory to the Administrative Agent);
(viii) The Statements and the Projections;
(ix) A duly completed Compliance Certificate certificate prepared as of the last day Closing Date in substantially the form of Exhibit 7.1.1(A) (the fiscal quarter of DSW most recently ended prior to the “Closing DateCompliance Certificate”), signed by an Authorized Officer of DSWthe Parent;
(viiix) A certificate of an Authorized Officer of the Parent in the form of Exhibit 7.1.1(B) hereto as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xi) All material consents required to effectuate the transactions contemplated hereby;
(ixxii) Evidence that Copies of all intercompany instruments and leases reflecting legend required by the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedterms of the Intercompany Subordination Agreement;
(xxiii) Results of searches or All documentation and other evidence reasonably satisfactory to information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA Patriot Act; and
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vx) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except (or in all respects with regard to the extent such representations and warranties are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects), (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30December 31, 20102019;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified (if obtainable by the Closing Date) by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party party thereto and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ , LLP, as counsel for the Loan Parties, each dated as of the Closing Date Date, in form and opining as substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWthe Borrower, demonstrating on a pro forma basis (a) compliance with the financial covenants herein (assuming for purposes of the Net Leverage Ratio that the Loans borrowed on the Closing Date were borrowed on the last day of such fiscal quarter);
(vii) Unaudited financial statements of the Borrower for the period ended December 31, 2019, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related consolidated statements of income, stockholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year;
(viii) Receipt of and satisfaction by the Lenders with the annual budget of the Borrower for fiscal year 2020, together with all assumptions used in preparing such budget;
(ix) All material consents required to effectuate the transactions contemplated hereby, if any;
(ixx) Evidence that the Existing Loan Credit Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens Liens, if any, securing such obligations have been released;
(xxi) Results of Lien, tax and judgment searches or other evidence in acceptable scope and with results reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory acceptable to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xixii) An executed Collateral Access Agreement or Certificate of Beneficial Ownership and such other lien waiver agreement from documentation and other information requested in connection with applicable “know-your-customer” and anti-money laundering rules and regulations, including the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA Patriot Act; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(ia) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vi) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wii) the Loan Parties are in compliance with each of the covenants and conditions hereunder, and (xiii) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iiib) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary (or, in each case, equivalent officer otherwise named) of each of the Loan Parties, certifying as appropriate as to: (ai) all action taken by each such Loan Party in connection with this Agreement and the other Loan DocumentsDocuments (including copies of signed resolutions to the extent customary under local Law); (bii) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (ciii) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state public official of the jurisdiction where such documents are filed in a state office Loan Party is organized, together with certificates from the appropriate state public officials as to the continued existence and good standing (or equivalent term otherwise named) of each Loan Party in each state jurisdiction where such Loan Party is organized or qualified to do business; provided that, in respect of Guarantors that are Spanish Persons, an online excerpt (“nota simple online”) issued by the relevant commercial registry, copies of their online bylaws and copies of their constitutional documents shall be sufficient;
(ivc) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each (and where reasonably deemed necessary or appropriate by the Administrative Agent, notarized in accordance with Laws applicable to the Loan Party Parties and agreements entered into by them) and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(vd) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPcounsel for the Loan Parties or, as applicable, counsel for the Loan PartiesAdministrative Agent, each covering customary subjects, dated as of the Closing Date and opining reasonably satisfactory to the Administrative Agent in form and substance, as to the matters set forth in Schedule 6.1.17.1.1;
(vie) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viif) A duly completed Compliance Certificate Certificate, and information relating to the Aggregate Sales Percentage, the Aggregate Asset Percentage, and the Aggregate EBITDA Percentage described in clause (ii) of Section 8.3.3 [Certificates of the Borrower], in each case as of the last day of the fiscal quarter of DSW the Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrower;
(viiig) All material consents Evidence that other consents, if any, required to effectuate consummate the transactions contemplated herebyhereby as of the Closing Date have been obtained;
(ixh) Evidence that the Existing Loan Credit Agreement has been terminated, and all outstanding Indebtedness and other obligations thereunder have been paid and satisfied in full (other than reimbursement obligations in respect of the Existing Letters of Credit; provided that letter of credit issuance and risk participation fees thereunder, other than fees due upon presentation of drafts, shall have been paid in full), and all Liens securing such obligations have been released;
(xi) Results [Reserved];
(j) At least five (5) Business Days prior to the Closing Date, interim consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year-to-date period ending September 30, 2017, including comparable periods in the fiscal year ending December 31, 2016;
(k) A perfection certificate from each Loan Party that is a US Subsidiary (and from each Loan Party that is not a US Person such similar information regarding such Loan Party and its assets as the Administrative Agent may reasonably request) and evidence that all Liens in the Collateral pursuant to the Security Agreements, the Pledge Agreements, the Patent, Trademark and Copyright Security Agreement, and other Loan Documents upon, as applicable, the taking of possession of Collateral or the making of appropriate filings will be perfected and have the priority required under the Loan Documents, including Lien searches or other evidence in acceptable scope and with acceptable results;
(l) [Reserved];
(m) Pro forma projections (including a pro forma closing balance sheet, pro forma statements of operations and cash flow) for the fiscal years 2018 through 2022, (including assumptions used in preparing the forecast financial statements) that are reasonably satisfactory to the Administrative Agent in form and content;
(n) [Reserved];
(o) [Reserved];
(p) At least five (5) Business Days prior to the Closing Date, information required by each Lender to comply with the USA PATRIOT Act, other Anti- Terrorism Laws, and other ‘know your customer’ requirements, in each case dated as of a date reasonably satisfactory requested in writing prior to the Administrative Agentseventh (7th) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Business Day prior to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementClosing Date; and
(xiiq) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Ferroglobe PLC)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the date of the Closing Date in substantially last audited financial statements of the form of Exhibit 7.3.4.1Borrower delivered to the Administrative Agent, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case (z) after giving effect to the initial Loans to be made on the Closing Date and consummation hereunder, each of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Parties is Solvent;
(iiiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeinsured;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer setting forth pro-forma compliance of DSWthe Borrower and its subsidiaries on a consolidated basis, after giving effect to the Loans (the “Closing Date Compliance Certificate”);
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Credit Agreement has been terminated, and all outstanding obligations thereunder have been paid paid;
(ix) A Lien search in acceptable scope and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results Pro forma projections (including a pro forma closing balance sheet, pro forma statements of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agentoperations and cash flows) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeyears 2013 through 2017, including assumptions used in preparing the forecast financial statements;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (Ii-Vi Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30December 31, 20102024, (y) there is no action, suit, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Official Body that could reasonably be expected to have or result in a Material Adverse Change and (z) the conditions stated in Section 7.1(a)(viii) and Sections 7.2(a) and (b) have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a date not more than thirty (30) days prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in each the state where organized or qualified to do businessof its organization;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock the parties thereto;
(iv) Appropriate transfer powers and stock or other certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all to the extent such pledged Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the is evidenced by certificated securities or other possessory Collateral;
(v) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWBorrower, demonstrating compliance with the financial covenants set forth in Sections 9.13, 9.14 and 9.15 on a Pro Forma Basis;
(viii) All material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence that all obligations under the Existing Loan Credit Agreement has been terminatedhave been, and all outstanding obligations thereunder have been or will be substantially concurrently with the making of the Loans on the Closing Date paid in full and all Liens securing such obligations have been releasedbeen, or will be substantially concurrently with the making of the Loans on the Closing Date, terminated;
(xA) Results Lien searches in acceptable scope and with acceptable results; (B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral, (C) searches of searches ownership of, and Liens on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; (D) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings); (E) evidence that all filing and recording fees and taxes shall have been duly paid and (F) such other evidence reasonably satisfactory to documents and information as the Administrative Agent (in each case dated as of a date shall reasonably satisfactory request to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to evidence that the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory shall have a valid and perfected first priority security interest (subject to Liens permitted under Section 9.2) in the Administrative Agent for the delivery of such termination statements and releases have been madeCollateral;
(xi) An The Administrative Agent shall have received (A) a duly executed Collateral Access Agreement or other lien waiver agreement from Loan Request with respect to the lessorLoans to be made on the Closing Date, or other applicable Person (B) disbursement instructions (with wiring instructions and account information) for all disbursements to be made on the fulfillment center Closing Date and (C) to the main distribution center as required under extent that any of the Security Agreement; andLoans to be made on the Closing Date will be Term SOFR Rate Loans, a customary funding indemnity letter not less than three (3) Business Days prior to the Closing Date;
(xii) A certificate of an Authorized Officer of the Borrower as to the Solvency of the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the transactions contemplated by this Agreement;
(xiii) (A) the Statements and the Projections, (B) the audited financial statements of the Borrower and its Subsidiaries, on a consolidated basis, for the fiscal year ending on December 31, 2024, (C) the internally-prepared quarterly financial statements of the Borrower and its Subsidiaries, on a consolidated basis, for the fiscal quarter ending on December 31, 2025 and (D) projections for the Borrower and its Subsidiaries for the five (5) year period following the Closing Date;
(xiv) The Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender (A) at least three (3) Business Days prior to the Closing Date, to the extent requested at least ten (10) days prior to the Closing Date, to the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, an executed Certificate of Beneficial Ownership and (B) to the extent requested at least ten (10) days prior to the Closing Date, such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(xv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On ICT Holdco shall deliver or cause to be delivered to North Sur and North Sur Subco the Closing Datefollowing in form and substance satisfactory to North Sur, acting reasonably:
(i) certificates of ICT Holdco certifying the Administrative Agent shall have received each accuracy of the following items set forth in Sections 3.2(a) and 3.2(b) in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010North Sur;
(ii) A Simplified Borrowing Base Certificate prepared as certificates of two senior officers of ICT Holdco certifying the accuracy of the Closing Date items set forth in substantially the form of Exhibit 7.3.4.1Sections 3.2(a), showing the sum of Revolving Credit Availability plus the Borrowers’ cash 3.2(b) and cash equivalents then on hand3.2(c), in each case after giving effect form and substance reasonably satisfactory to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000North Sur;
(iii) A certificate dated certificates representing the Closing Date and signed by the Secretary outstanding ICT Holdco Shares or an Assistant Secretary of each of the Loan Partiesother evidence, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized reasonably satisfactory to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as North Sur to be exchanged for North Sur Post- Consolidation Shares pursuant to the continued existence and good standing Amalgamation in accordance with the provisions of each Loan Party in each state where organized or qualified to do businessthis Agreement;
(iv) This Agreement original share registers, share transfer ledgers, minute books and corporate seals (if any) of each of the other Loan Documents signed by an Authorized Officer of each Loan Party ICT Parties and all appropriate financing statements their corresponding ICT Books and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralRecords;
(v) A written opinion certificates of status, compliance, good standing or like certificates with respect to each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as ICT Parties issued by applicable government officials of the Closing Date and opining as to the matters set forth in Schedule 6.1.1their respective jurisdictions of incorporation/organization;
(vi) Evidence that adequate insurance certified copies of:
(A) the charter documents and by-laws of each of the ICT Parties;
(B) certificates of incumbency;
(C) the resolution of the board of directors of ICT Holdco authorizing the execution, delivery and performance of this Agreement and all Contracts, instruments, certificates and other documents required by this Agreement to be maintained under delivered by ICT Holdco as contemplated by this Agreement is in full force and effectAgreement; and
(D) the ICT Holdco Amalgamation Resolution;
(vii) the TSXV Escrow Agreement, with additional insured and lender loss payable endorsements attached thereto duly executed by the parties to such agreement (other than North Sur);
(viii) the Escrow Agreement, duly executed by the parties to such agreement (other than North Sur);
(ix) a legal opinion in form and substance satisfactory to North Sur and North Sur Subco, each acting reasonably, and the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;TSXV that sets out, among other things:
(viii) A duly completed Compliance Certificate as the corporate good standing of each of ICT Holdco and ICT Subco; and (ii) the last day legal and beneficial holdings of the fiscal quarter each of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, ICT Holdco’s and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedICT Subco’s securities;
(x) Results ICT Holdco shall cause each U.S. Person that is a shareholder of searches or other evidence reasonably satisfactory ICT Holdco and is entitled to receive North Sur Shares in connection with the Administrative Agent (Amalgamation at the Effective Time, to execute and deliver the U.S. Accredited Investor Certificate, attached hereto as Schedule “E”, to North Sur. It being understood that any U.S. Person that is shareholder of ICT Holdco that does not execute and deliver the U.S. Accredited Investor Certificate shall not be issued North Sur Shares in each case dated as of a date reasonably satisfactory to connection with the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;Amalgamation; and
(xi) An executed Collateral Access Agreement or such other lien waiver agreement from documentation as North Sur reasonably requests on a timely basis in order to establish the lessor, or other applicable Person for completion of the fulfillment center Transaction and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements taking of all corporate proceedings in connection with such transactions the Transaction (as the Administrative Agent or its counsel may reasonably requestto certification and otherwise), in each case in form and substance satisfactory to North Sur, acting reasonably.
Appears in 1 contract
Sources: Amalgamation Agreement
Deliveries. On the Closing Date, the Administrative Agent Lender shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentLender:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Default or Event of Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Lender;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralstatements;
(iv) [Reserved].
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent Lender and its counsel naming the Administrative Agent Lender as additional insured insured, mortgagee and lender loss payee, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Lender to assist in ensuring that the Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Lender with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Lender, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material consents required to effectuate the transactions contemplated hereby;
(ixvii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(xviii) Results an executed Certificate of searches or other evidence reasonably satisfactory Beneficial Ownership in form and substance acceptable to the Administrative Agent (Lender, and such other documentation and other information requested in each case dated as of a date reasonably satisfactory to connection with applicable "know your customer" and anti-money laundering rules and regulations, including the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA Patriot Act; and
(xiiix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent Lender or its counsel may reasonably request.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Facility (Shotspotter, Inc)
Deliveries. On (a) At the Closing DateClosing, the Administrative Agent Sellers shall have received each of the following in form and substance reasonably satisfactory deliver to the Administrative AgentBuyer:
(i) A certificate Certificates representing the STAT-LAND Shares free and clear of each of the Loan Parties signed all Liens, either duly endorsed in blank or accompanied by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010duly executed stock powers;
(ii) A Simplified Borrowing Base Certificate prepared as The books and records of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Company;
(iii) A certificate dated An employment agreement in substantially the Closing Date and signed form attached hereto as Exhibit B, duly executed by ▇▇▇▇ ▇▇▇▇▇▇▇ (the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business"Employment Agreement");
(iv) This Agreement and each of The Escrow Agreement, duly executed by the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralSellers;
(v) True copies of the Articles of Incorporation and current Bylaws of the Company; a certificate of good standing with regard to the Company, together with an incumbency certificate reasonably satisfactory to the Buyer's counsel;
(vi) Compiled financial statements of the Company for fiscal year ended December 31, 1997 and a comfort or "negative assurances" letter for the interim financial statements of the Company for the period ended June 30, 1998 from Ruffulo & Rudder, CPAs;
(vii) A written opinion Qualified Investor Questionnaire and the Representations and Warranties of each Shareholders substantially in the forms of Exhibit C and Exhibit D respectively in a manner which does not adversely affect the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended (the "Securities Act");
(viii) Evidence that the Sellers have caused the Company to collect all principal, interest and other amounts due from any Affiliate and on all outstanding loans made by the Company;
(ix) Evidence that the Company has paid, or, upon payment pursuant to Section 1.4(a), will have caused to be paid, all principal, interest and other amounts on all outstanding loans payable by the Company, including, without limitation, payoff letters from Olympian Bank and Richmond County Savings Bank agreeing to deliver UCC-3 termination statements upon payment as set forth in Section 1.4(a), respectively;
(x) UCC-3 termination statements from Gateway State Bank or its successor releasing all its liens on the assets of the Company;
(xi) Employment Agreements in substantially the form attached hereto as Exhibit E, duly executed before a notary by (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, and (iii) ▇▇▇▇▇ ▇▇▇▇▇▇ LLP(collectively, counsel for the Loan Parties"At Will Employment Agreements");
(xii) Evidence of compliance with applicable state securities laws; and
(xiii) All other previously undelivered documents required pursuant hereto to be delivered by the Sellers, each dated as on behalf of the Closing Date and opining as Sellers or the Company, to the matters set forth Buyer at or prior to the Closing in Schedule 6.1.1connection with the purchase and sale of the STAT-LAND Shares and the other transactions contemplated hereby.
(b) At the Closing, the Buyer or Guardian, as the case may be, shall deliver to the Sellers and/or such other recipient, as the case may be:
(i) The Purchase Price, as determined and in the manner required by Section 1.3, 1.4 and 1.5 hereof;
(ii) The Employment Agreement, duly executed by the Buyer;
(iii) The At Will Employment Agreements, duly executed by the Buyer;
(iv) The Escrow Agreement, duly executed by the Buyer;
(v) True copies of the Articles of Incorporation and current Bylaws of each of the Buyer and Guardian; a certificate of good standing with regard to the Buyer, together with appropriate corporate resolutions and incumbency certificates reasonably satisfactory to the Sellers' counsel;
(vi) Evidence that adequate insurance All other previously undelivered documents required pursuant hereto to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory delivered by the Buyer and/or Guardian to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended Sellers at or prior to the Closing Date, signed by an Authorized Officer in connection with the purchase and sale of DSW;
(viii) All material consents required to effectuate the Shares and the other transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Stock Purchase Agreement (Guardian International Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Event of Default or Event of Potential Default exists, and (yd) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that both (a) the Existing Loan Credit Agreement has dated December 1, 2010 between the Borrower and JPMorgan Chase Bank, N.A., and (b) the Credit Agreement dated April 20, 2010 between the Borrower and PNC Bank, National Association, have been terminated, and all outstanding obligations thereunder have been paid paid;
(ix) A lien search in acceptable scope and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan PartiesNo Material Adverse Change since April 29, except for Permitted Liens 2011 shall have occurred and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeno material litigation shall exist;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from The Administrative Agent shall be satisfied with its review of (i) ERISA and labor matters affecting the lessor, or other applicable Person for Loan Parties and their Subsidiaries and (ii) the fulfillment center status of regulatory approvals and licenses of the main distribution center as required under the Security AgreementLoan Parties and their Subsidiaries; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower signed by a Compliance Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated as of the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement or the other Loan Documents are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement or such other Loan Document by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Change shall be true and correct in all respects, as of the Closing Date (wor, if such representation or warranty makes reference to an earlier date, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and the other Loan Documents, (xc) no Potential Default or Event of Default or Default exists, and (yd) there has occurred no Material Adverse Change since December 31, 2022, and (e) each of the Loan Parties has occurred since January 30, 2010satisfied each of the closing conditions required to be satisfied by it hereunder;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized organized;
(iii) evidence that there is no action, suit, proceeding or qualified investigation pending against, or threatened in writing against, any Loan Party or any of its respective Subsidiaries or any of their respective properties, including the Material Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to do businessresult in a Material Adverse Change;
(iv) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any FCC or PUC counsel, if required by the Administrative Agent), dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date; provided, however that no opinion of counsel shall be required for any Loan Parties that are incorporated outside of State of Delaware;
(vi) Evidence subject to Section 6.18, evidence that adequate insurance required to be maintained under this Agreement is in full force and effect;
(vii) a duly completed, executed Loan Request for Credit Extension for each Loan or Letter of Credit requested to be made on the Closing Date, including notice of election as to Interest Periods (if applicable);
(viii) a duly completed, executed Solvency Certificate signed by an Authorized Officer of each the Borrower;
(ix) evidence that all material governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(x) evidence that all outstanding obligations under the Existing Credit Agreement have been paid in full;
(xi) [reserved];
(xii) a Lien search with additional insured respect to the Borrower and lender loss payable endorsements attached thereto each other Loan Party, in form and substance scope satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured with results showing no Liens other than Permitted Liens and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably otherwise satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing DateFunding Date (or at such other time as provided in this Section 7.2), the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Funding Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 20102020 (and the Administrative Agent and Required Lenders shall not have otherwise determined), (C) there is no action, suit, investigation or proceeding pending, or to the knowledge of the Borrower, threatened in any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the conditions stated in this Section 7.2 and Section 7.3 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Funding Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Funding Date, to the extent applicable, certified as of a sufficiently recent date prior to the Funding Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization;
(iii) to the extent not delivered on the Funding Date, each state where organized or qualified to do businessof the Loan Documents duly executed by the parties thereto;
(iv) This Agreement and each written opinion(s) of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Funding Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence on or prior to the Funding Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(viivi) A a duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW Holdings most recently ended prior to the Closing Funding Date, signed by an Authorized Officer of DSWthe Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Funding Date and the Transactions on a Pro Forma Basis, (A) the Consolidated Total Net Leverage Ratio does not exceed 3.20 to 1.00 and (B); the Loan Parties are in compliance with Section 9.12.
(vii) all material consents, licenses and approvals required for the delivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(ix) indicating receipt by the absence of Liens on the assets Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan PartiesParty;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to deemed unnecessary by the Administrative Agent for in its reasonable discretion under the delivery Law of the jurisdiction of organization of such termination statements Person);
(D) searches of ownership of, and releases have been made▇▇▇▇▇ on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(x) a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center Statements and the main distribution center as required under the Security Agreement; andProjections;
(xii) Such [reserved];
(xiii) the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act;
(xiv) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Incremental Facility Amendment to Credit Agreement (Cadre Holdings, Inc.)
Deliveries. On the Closing Date, the Administrative Agent Seller shall have received each of the following in form executed and substance reasonably satisfactory delivered to the Administrative AgentPurchaser:
(i) A certificate of each all of the Loan Parties signed Operative Agreements required hereunder to be executed and delivered by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations Company and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010Seller;
(ii) A Simplified Borrowing Base certificates evidencing the Shares, duly endorsed in blank or accompanied by a stock power duly executed in blank;
(iii) resignations and releases of each officer and director of Trump Indiana in a form satisfactory to the Purchaser;
(iv) an executed receipt for the Initial Purchase Price;
(v) a copy of the Certificate prepared of Incorporation of Trump Indiana, certified as of a date within three (3) Business Day▇ ▇▇ the Closing Date in substantially by the form Secretary of Exhibit 7.3.4.1State of Delaware;
(vi) a copy, showing certified by the sum Secretary of Revolving Credit Availability plus (A) Seller, of the Borrowers’ cash resolutions of its board of directors authorizing the execution and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date delivery of this Agreement and consummation of the transactions contemplated hereby by this Agreement, and in each case such resolutions shall be in full force and effect and not revoked and (including repayment B) Trump Indiana, of Indebtedness under its Bylaws;
(vii) ▇ ▇▇od standing certificate for Trump Indiana issued by the Existing Loan Agreement Secretary of State of Delaware dated as ▇▇ ▇ date within three (including in respect of any outstanding letters of credit issued thereunder3) and payment of fees and expenses owing on Business Days prior to the Closing Date), of at least $300,000,000;
(iiiviii) A certificate dated a physical count of cash and Cash on Hand of the Closing Date and signed Company certified in writing by the Secretary or an Assistant Secretary of each Chief Financial Officer of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged CollateralSeller, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of bank reconciliations for each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each cash account dated as of the Closing Date and opining as to certified in writing by the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as Chief Financial Officer of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated herebySeller;
(ix) Evidence that duly executed copies of the Existing Loan Agreement has been terminated, consents and all outstanding obligations thereunder have been paid approvals obtained by Seller in accordance with Section 2.04 and all Liens securing such obligations have been releasedSection 6.04;
(x) Results of searches or other evidence reasonably satisfactory to that the Administrative Agent (in each case dated as of a date reasonably satisfactory to requisite consent from the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have lenders under Seller's Credit Facility has been madeobtained;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from evidence that all of the lessorobligations of the Company with respect to the Seller's Credit Facility have been discharged in full and any Liens on the Shares, or on the Assets and Properties of the Company have been released, other applicable Person for than Permitted Liens and capitalized lease obligations which serve as a reduction to the fulfillment center and the main distribution center as required under the Security Agreement; andInitial Purchase Price;
(xii) Such other documents, instruments Section 4.15 of the Disclosure Schedule; EXECUTION COPY
(xiii) evidence of termination of the Affiliate Agreements;
(xiv) an executed counterpart of the Trump License in a form mutually acceptable to Seller and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.Purchaser (▇▇▇ "Trump License");
Appears in 1 contract
Sources: Stock Purchase Agreement (Majestic Star Casino LLC)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vx) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except (or in all respects with regard to the extent such representations and warranties are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects), (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Parent delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by an Authorized Officer, the Secretary or an Assistant Secretary of each of the Domestic Loan PartiesParties and a director of each of the Foreign Borrowers, certifying on behalf of each respective Loan Party as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents certificate or articles of incorporation (or equivalent) as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office with an Official Body (domestic or foreign) together with certificates from the appropriate state officials as to the continued existence and and, to the extent available, good standing of each Loan Party in each state location where organized or qualified to do businessbusiness (to the extent applicable in the relevant jurisdiction) and (d) copies of its by-laws, operating agreement or partnership agreement (or equivalent), as applicable;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party party thereto and all appropriate financing statements and other documents for filing, including appropriate stock powers and certificates and other documents, instruments and agreements evidencing the any pledged Collateral;
(iv) Written opinions of counsel for the Domestic Loan Parties, dated the Closing Date, in form and evidence of filing of all Collateral Documents as may be necessary substance reasonably satisfactory to reflect valid the Administrative Agent and perfected first priority Liens in the Collateralits counsel;
(v) A written opinion Written opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for relating to the UK Loan Parties, each dated as of the Closing Date Date, in form and opining as substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Parent most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWthe Parent, demonstrating on a pro forma basis (including giving pro forma effect to the TTI Acquisition) compliance with the financial covenants herein;
(viii) Quarterly financial statements for the most recently completed fiscal quarter of the Parent for which such statements are available (and if the financial statements for the fiscal quarter ending September 30, 2018 are not available, financial statements for the month ending August 31, 2018), all in reasonable detail and certified by an Authorized Officer of the Parent;
(ix) Receipt of and satisfaction by the Lenders with the financial projections (including, pro forma statements of operations and cash flow) for the Parent and its Subsidiaries for fiscal years 2018 through 2023 (including on a quarterly basis through 2019);
(x) All material consents consents, regulatory approvals and licenses required to effectuate effectuate, and confirmation of an absence of any legal or regulatory prohibition with respect to, the financing the transactions contemplated hereby;
(ixxi) Evidence that the Existing Loan Fifth Amended and Restated Financing and Security Agreement dated December 15, 2016, as amended, among one or more of the Borrowers and ▇▇▇▇▇ Fargo Bank, National Association, as lender, has been terminated, and all outstanding obligations thereunder have been paid (or otherwise satisfied) and all Liens securing such obligations have been released;
(xxii) Results of Lien, tax and judgment searches or other evidence in acceptable scope and with results reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory acceptable to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xixiii) An executed Collateral Access Agreement or other lien waiver agreement from To the lessor, or other applicable Person for the fulfillment center and the main distribution center as extent required under applicable law, an executed Certificate of Beneficial Ownership for each Borrower, in form and substance reasonably acceptable to the Security Agreement; andAgent and each Lender, and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
(xiixiv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
: (i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder in all material respects, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010;
the date of the last audited financial statements of the Borrower delivered to the Administrative Agent; (ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or other Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) true copies of all corporate or other organizational action taken by each Loan Party in connection with relative to this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or and those additional material jurisdictions where certain Loan Parties are qualified to do business;
business as requested by the Administrative Agent; (iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party Person party thereto and all appropriate financing statements required by law and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence ; (iv) Written opinions of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1;
Administrative Agent; (viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and or lender loss payee;
, as applicable; (viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
Borrower evidencing (viiia) All material consents required to effectuate a Leverage Ratio as of the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory Closing Date after giving effect to the Administrative Agent (in each case dated as of a date reasonably satisfactory Loans to the Administrative Agent) indicating the absence of Liens be made hereunder on the assets Closing Date of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.not greater
Appears in 1 contract
Sources: Credit Agreement (Black Box Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Company signed by an Authorized Officer of each Borrowerthe Company, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default exists, or Potential Default exists and (yD) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Consolidated Subsidiaries which could reasonably be expected to have a Material Adverse Change has occurred since January 30, 2010Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Director of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (or foreign jurisdictional equivalent in each jurisdiction where such certification is required) of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Opinions of counsel for each Loan Party of the Borrowers, dated the Closing Date, each in form and all appropriate financing statements substance acceptable to the Administrative Agent and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralLenders;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel duly completed Compliance Certificate for the Loan Partiesfiscal period ending August 31, each dated as 2014, signed by an Authorized Officer of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Company;
(vi) Evidence that adequate insurance required to be maintained under this the Credit Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate dated as of June 29, 2012, among the last day of Borrowers, the fiscal quarter of DSW most recently ended prior to other foreign borrowers a party thereto, the Closing Datelenders a party thereto and PNC, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement as administrative agent, has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(xvii) Results A completed and executed Loan Request from the Borrowers in substantially the form of searches or other evidence reasonably satisfactory to Exhibit 2.5.1 and, if applicable, Swing Loan Request from the Administrative Agent (Borrowers in each case dated as substantially the form of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeExhibit 2.5.2;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiiviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request, including, but not limited to, all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act; and
(ix) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (RPM International Inc/De/)
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower signed by a Compliance Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated as of the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement or the other Loan Documents are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement or such other Loan Document by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Change shall be true and correct in all respects, as of the Closing Date (wor, if such representation or warranty makes reference to an earlier date, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and the other Loan Documents, (xc) no Potential Default or Event of Default or Default exists, and (yd) there has occurred no Material Adverse Change either (y) in the business, properties, assets, or condition (financial or otherwise) of the Loan Parties, taken as a whole or (z) in the facts and information regarding the Loan Parties as represented to the Administrative Agent and the Lenders up to the Closing Date, taken as a whole, (e) each of the Loan Parties has occurred since January 30satisfied each of the closing conditions required to be satisfied by it hereunder and (f) a calculation, 2010calculated on a pro forma basis, of the Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do business;
(iii) evidence that there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(iv) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local, FCC or PUC counsel, if required by the Administrative Agent), dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vi) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee, as applicable;
(vii) A a duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior completed, executed Loan Request for Credit Extension for each Loan requested to be made on the Closing Date, including notice of election as to Interest Periods (if applicable);
(viii) a duly completed, executed Perfection and Diligence Certificate signed by an Authorized Officer of DSWeach of the Loan Parties;
(viiiix) All a duly completed, executed Solvency Certificate signed by an Authorized Officer of the Borrower on behalf of itself and the Loan Parties;
(x) evidence that all material consents governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated herebyhereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(ixxi) Evidence evidence that the Existing Loan Agreement Prior Credit Agreement, has been terminated, and all outstanding obligations thereunder have been paid in full and all Liens securing such obligations have been releasedreleased or assigned to the Administrative Agent, as applicable;
(xxii) Results of searches or a Lien search with respect to the Borrower and each other evidence reasonably Loan Party, in scope satisfactory to the Administrative Agent (in each case dated as of a date reasonably and with results showing no Liens other than Permitted Liens and otherwise satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xixiii) An executed Collateral Access Agreement or other lien waiver agreement from to the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as extent requested by the Administrative Agent or its counsel may reasonably request.Agent, true, correct and complete copies of all Material Agreements not already delivered pursuant to another clause of this Section 4.1;
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct (A) in the case of representations and warranties qualified by materiality, in all respects and (B) in the case of other representations and warranties, in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default exists, or Potential Default exists and (yd) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official Governmental Authority where such documents are filed in with a state office Governmental Authority together with certificates from the appropriate state officials Governmental Authority as to the continued existence and good standing of each Loan Party in each state jurisdiction where organized or qualified to do business;
(iii) A solvency certificate from the chief financial officer of the Borrower substantially in the form attached hereto as Exhibit 7.11;
(iv) This Agreement and each of the other Loan Documents and the Perfection Certificate signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(v) A written opinion The executed legal opinions of each of (a) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇Frome ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date, (b) O’Neil, Cannon, Hollman, ▇▇▇▇▇▇ & ▇▇▇▇▇ S.C., Wisconsin local counsel for the Loan Parties, dated the Closing Date and opining as (c) Stikeman Elliott LLP, Canadian local counsel for the Loan Parties, dated the Closing Date, in each case in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent for the benefit of the Secured Parties as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW the Borrower most recently ended prior to the Closing DateDate for which financial statements are available, signed by an Authorized Officer of DSWthe Borrower, demonstrating that, after giving effect to the Transactions, as of the Closing Date (a) the Leverage Ratio does not exceed 3.00 to 1.00, (b) Fixed Charge Coverage Ratio is not less than 1.25 to 1.00, and (c) Liquidity is not less than $15,000,000;
(viii) All material consents consents, regulatory approvals and licenses required to effectuate effectuate, and confirmation of an absence of any legal or regulatory prohibition with respect to, the transactions financing contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as Receipt of a date business plan and budget of each of Parent and the Borrower on a consolidated basis, including forecasts prepared by management, of consolidated balance sheets, statements of operations and (on an annual basis only) statements of cash flow, in form and substance reasonably satisfactory to the Administrative Agent, (x) indicating on an annual basis through fiscal year 2019 and (y) on a quarterly basis through the absence of Liens on the assets of the Loan Partiesquarter ending December 31, except for Permitted Liens and Liens for which termination statements and releases 2015;
(x) The Administrative Agent shall have received:
(a) reasonably satisfactory evidence that all certificates, agreements or instruments representing or evidencing the Pledged Securities and Intercompany Notes (each as defined in the Security Agreement, Canadian Security Agreements, as applicable, and the Pledge Agreement), accompanied by instruments of transfer and stock powers undated and endorsed in blank have been delivered to the Administrative Agent are being tendered concurrently with Agent; provided that such extension certificates, agreements or instruments may be delivered within two Business Days of credit the Closing Date if not delivered on or other arrangements prior to the Closing Date;
(b) [Reserved]
(c) reasonably satisfactory evidence that the Borrower has used commercially reasonable efforts to obtain all the other certificates, agreements, including Control Agreements (as defined in the Security Agreement or Canadian Security Agreements, as applicable), or instruments necessary to perfect the Administrative Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each Loan Party (as each such term is defined in the Security Agreement or Canadian Security Agreements, as applicable, and to the extent required by such Agreements) and, if applicable, such certificates, agreements or instruments have been delivered to the Administrative Agent;
(d) UCC and PPSA financing statements (including Fixture Filings) in appropriate form for filing under the UCC or PPSA, as applicable, filings with the United States Patent and Trademark Office, United States Copyright Office and Canadian Intellectual Property Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Collateral Documents;
(e) certified copies of UCC and PPSA, United States Patent and Trademark Office and United States Copyright Office and Canadian Intellectual Property Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent for deems necessary or appropriate, none of which encumber the delivery of such termination statements and releases have been made;Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) after giving effect to the Transactions; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On At the Closing, the Company shall have executed and delivered to Cisco the following documents:
(a) the Amended and Restated Shareholders Agreement, dated November 1, 2002 amending and restating that certain Unitholders Agreement, dated March 28, 2000, as amended (the “Shareholders Agreement”);
(b) the Second Amended and Restated Registration Rights Agreement, dated November 1, 2002 (the “Registration Rights Agreement”);
(c) this Agreement;
(d) an Officer’s Certificate, dated the Closing Date, stating that the Administrative Agent conditions specified in Section 1.1 have been fully satisfied and the conditions under Sections 1.2 and 1.3 have been fully satisfied to the extent such conditions relate to the Company’s obligations thereunder;
(e) certified copies of the resolutions duly adopted by the Board, which resolutions shall not have received been rescinded or modified, authorizing the execution, delivery and performance of this Agreement, the Shareholders Agreement and the Registration Rights Agreement and each of the following in form other agreements contemplated hereby to which the Company is a party or by which it is bound, the issuance and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each sale of the Loan Parties signed by an Authorized Officer of each BorrowerPreferred Stock, dated the Closing Date stating that (v) all representations and warranties reservation for issuance upon conversion of the Loan Parties set forth in this Agreement are true Preferred Stock of that number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock and correct in the consummation of all material respects other transactions to occur as of the Closing Date, except to the extent such representations and warranties are modified as contemplated by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010this Agreement;
(iif) A Simplified Borrowing Base Certificate prepared as certified copies of the Closing Date in substantially the form Certificate of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Incorporation and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Bylaws, each as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDate;
(ivg) This Agreement copies of all third party and each governmental consents, approvals and filings required in connection with the consummation of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary transactions to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated occur as of the Closing Date hereunder (including all blue sky law filings and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force waivers of all preemptive rights and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as rights of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementfirst refusal); and
(xiih) Such such other documents, instruments and agreements in connection with such documents relating to the transactions contemplated by this Agreement as the Administrative Agent or its counsel to Cisco may reasonably request.
Appears in 1 contract
Sources: Stock Purchase Agreement (Cbeyond Communications Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “absence of a Material Adverse Change” or words of similar import, Effect (as such term is defined in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010ICG Merger Agreement);
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or reasonably requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral;
(viivi) A duly completed Compliance Certificate setting forth pro-forma financial covenant levels as of the last day of the most recent fiscal quarter of DSW most recently ended prior (to the extent that the ICG Acquisition is consummated on or before the Closing Date, pro-forma levels shall be calculated on a pro-forma basis as if the ICG Acquisition was consummated as of the last day of the most recent fiscal quarter) signed by an Authorized Officer of DSWBorrower;
(vii) Receipt of the Loan Parties’ audited financial statements, prepared in accordance with GAAP, for the fiscal years ended December 31, 2008, December 31, 2009 and December 31, 2010 and a pro forma consolidated balance sheet of the Borrower as of the date of the most recent consolidated balance sheet and a pro forma statement of operations for the twelve-month period ending on such balance sheet date, for the fiscal year ended December 31, 2010;
(viii) All material consents required to effectuate Delivery of the transactions contemplated herebypro forma financial projections of the Borrower and its Subsidiaries, including a pro forma closing balance sheet, statements of operations, statement of cash flows, for a five year period through the 2015 fiscal year;
(ix) Evidence that There being no court order or similar rule or regulation preventing the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedavailability of the Loans or the issuance of Letters of Credit;
(x) Results A Lien search in acceptable scope and with acceptable results;
(xi) A certified copy of searches the ICG Merger Documents;
(xii) Consummation of the ICG Tender Offer on terms and conditions as set forth in the ICG Merger Documents, without waiver or other evidence reasonably satisfactory amendment thereof that is materially adverse to the interests of the Lenders in their capacities as such unless consented to by the Administrative Agent Agent, such consent not to be unreasonably withheld or delayed;
(xiii) A solvency certificate from the Chief Financial Officer of the Borrower in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent) indicating , confirming the absence of Liens on the assets solvency of the Loan Parties, except for Permitted Liens Borrower and Liens for which termination statements its subsidiaries on a consolidated basis after giving effect to the ICG Acquisition;
(xiv) The Borrower and releases reasonably satisfactory each of the Guarantors shall have provided the documentation and other information to the Administrative Agent that are being tendered concurrently with required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the Patriot Act the extent such extension of credit or other arrangements reasonably satisfactory information is requested at least five (5) business days prior to the Administrative Agent for the delivery of such termination statements and releases have been madeICG Tender Offer Closing Date;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiixv) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Arch Coal Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A this Agreement duly executed by the parties hereto;
(ii) a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wA) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default exists, and (yB) no Material Adverse Change has occurred since January 30December 31, 2010;
2023 (iiand the Administrative Agent and Required Lenders shall not have otherwise determined), (C) A Simplified Borrowing Base Certificate prepared as there is no action, suit, investigation or proceeding pending, or to the knowledge of the Closing Date Borrower, threatened in substantially any court or before any arbitrator or Official Body that would reasonably be expected to have or result in a Material Adverse Change, and (D) the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash conditions stated in this Section 7.1 and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Section 7.2 have been satisfied;
(iii) A a certificate dated the Closing Date and signed by the Secretary an Authorized Officer or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolutions or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in each the state where organized or qualified to do businessof its organization;
(iv) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralparties thereto;
(v) A written opinion opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel (including appropriate local counsel as reasonable required by the Administrative Agent) for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence on or prior to the Closing Date, certificates of insurance evidencing that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent indicated as additional insured and lender loss payeepayable, as applicable;
(vii) A a duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;the Borrower, together with reasonably detailed calculations attached thereto demonstrating that, after giving effect to the incurrence of Loans on the Closing Date and the Transactions on a Pro Forma Basis, the Loan Parties are in compliance with the financial covenants set forth in Section 9.12 and Section 9.13.
(viii) All all material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(x) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to evidence that the Administrative Agent are being tendered concurrently with such extension (on behalf of credit or the Lenders) shall have a valid and perfected first priority (other arrangements reasonably satisfactory to than Permitted Liens) lien and security interest in the Administrative Agent for the delivery of such termination statements pledged Collateral and releases all filing and recording fees and taxes shall have been madeduly paid;
(xi) An executed Collateral Access receipt by the Administrative Agent of the following:
(A) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party;
(B) Uniform Commercial Code financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(C) subject to Section 8.14(b), all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement or any other lien waiver agreement from pledge agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the lessorpledged Equity Interests of any Foreign Subsidiary, or other applicable Person for such stock powers are deemed unnecessary by the fulfillment center and the main distribution center as required Administrative Agent in its reasonable discretion under the Security AgreementLaw of the jurisdiction of organization of such Person);
(D) searches of ownership of, and L▇▇▇▇ on, United States registered intellectual property owned by each Loan Party in the appropriate governmental offices; and
(E) duly executed notices of grant of security interest in the form required by any security agreement as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property owned by the Loan Parties (if and to the extent perfection may be achieved in the United States Patent and Trademark Office or the United States Copyright Office by such filings).
(xii) Such a certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xiii) the Statements and the Projections;
(xiv) a list of all licenses of Holdings and its Subsidiaries as of the Closing Date required (i) to transact with a Sanctioned Person or in a Sanctioned Jurisdiction, or (ii) under applicable export laws;
(xv) the Administrative Agent and each Lender that has so requested shall have received, in form and substance acceptable to the Administrative Agent and such Lender (A) no later than three (3) Business Days prior to the Closing Date, an executed Certificate of Beneficial Ownership and (B) such other documentsdocumentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, instruments and agreements including the USA PATRIOT Act; and
(xvi) such other documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(iA) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects, except for representations and warranties which (A) specifically refer to an earlier date which shall have been true and correct in all material respects as of the Closing Datesuch earlier date referred to therein, except to the extent such representations and warranties (B) are modified qualified by “materiality” or “Material Adverse Change” or words of similar import, in materiality which case they are will be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, (y) the Loan Parties are in compliance with ERISA and applicable labor laws, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iiiB) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(ivC) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower signed by a Compliance Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated as of the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement or the other Loan Documents are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement or such other Loan Document by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Change shall be true and correct in all respects, as of the Closing Date (wor, if such representation or warranty makes reference to an earlier date, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and the other Loan Documents, (xc) no Potential Default or Event of Default or Default exists, and (yd) there has occurred no Material Adverse Change either (y) in the business, properties, assets, or condition (financial or otherwise) of the Loan Parties, taken as a whole or (z) in the facts and information regarding the Loan Parties as represented to the Administrative Agent and the Lenders up to the Closing Date, taken as a whole, (e) each of the Loan Parties has occurred since January 30satisfied each of the closing conditions required to be satisfied by it hereunder and (f) a calculation, 2010calculated on a pro forma basis, of the Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do business; Table of Contents
(iii) evidence that there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(iv) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local, FCC or PUC counsel, if required by the Administrative Agent), dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vi) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee, as applicable;
(vii) A a duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior completed, executed Loan Request for Credit Extension for each Loan requested to be made on the Closing Date, including notice of election as to Interest Periods (if applicable);
(viii) a duly completed, executed Perfection and Diligence Certificate signed by an Authorized Officer of DSWeach of the Loan Parties;
(viiiix) All a duly completed, executed Solvency Certificate signed by an Authorized Officer of the Borrower on behalf of itself and the Loan Parties;
(x) evidence that all material consents governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated herebyhereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(ixxi) Evidence evidence that the Existing Loan Agreement Prior Credit Agreement, has been terminated, and all outstanding obligations thereunder have been paid in full and all Liens securing such obligations have been releasedreleased or assigned to the Administrative Agent, as applicable;
(xxii) Results of searches or a Lien search with respect to the Borrower and each other evidence reasonably Loan Party, in scope satisfactory to the Administrative Agent (in each case dated as of a date reasonably and with results showing no Liens other than Permitted Liens and otherwise satisfactory to the Administrative Agent; Table of Contents
(xiii) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to extent requested by the Administrative Agent for the delivery Agent, true, correct and complete copies of such termination statements and releases have been madeall Material Agreements not already delivered pursuant to another clause of this Section 4.1;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent The following items or documents shall have received each of the following in form and substance reasonably satisfactory been delivered to the Administrative AgentLender:
(i) A certificate Draw Request complying with the provisions of each this Agreement which shall constitute Borrowers’ representation and warranty to Lender that: (A) any completed construction is substantially in accordance with the Plans and Specifications, (B) all costs for the payment of which Lender has previously advanced funds have in fact been paid or are being held by Borrowers pending the resolution of a bonafide dispute with a Trade Contractor; provided, however, that (1) in such event, the Draw Request shall include a description of the dispute, the identity of the Trade Contractor and the maximum amount in dispute, (2) in no event shall Borrowers be holding, in the aggregate at any one time, Construction Loan Parties signed proceeds of more than $1,500,000.00 on account of all such pending disputes with Trade Contractors, and (3) if the dispute is not resolved within sixty (60) days following the date on which the Construction Loan Advance which was intended to pay the disputed cost was advanced, Borrowers shall return to Lender the amount of Construction Loan proceeds advanced to pay such disputed cost, which amount may be requested again by an Authorized Officer of each BorrowerBorrowers when the dispute is resolved, dated the Closing Date stating that (vC) all the representations and warranties contained in Article IV of the Loan Parties set forth in this Agreement are continue to be true and correct in all material respects as of the Closing Date, (except to the extent such representations and warranties of changes in circumstances or conditions which are modified not otherwise prohibited by “materiality” or “Material Adverse Change” or words of similar importthis Agreement, in which case they are true and correct in including a specific statement that all respects, (w) the Loan Parties Borrowers are in compliance with each Section 4.1.30 hereof), (D) no monetary Default or any Event of Default shall have occurred and be continuing hereunder, and (E) Borrowers continue to be in compliance in all material respects with all of the other terms, covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;contained in this Agreement.
(ii) A Simplified Borrowing Base An Advance Request accompanied by a completed and itemized Application and Certificate prepared for Payment (AIA Document No. G702) attached hereto as Exhibit H or similar form approved by Lender, containing the certification of the General Contractor or Trade Contractor to whom such payment is made, as applicable, and the Architect as to the material accuracy of same, together with invoices relating to all items of Hard Costs covered thereby and accompanied by a cost breakdown showing the cost of work on, and the cost of materials incorporated into, the Project to the date of the requisition. The cost breakdown shall also show the percentage of completion of each Line Item on the Loan Budget, and the accuracy of the cost breakdown shall be certified by Borrowers and by the Architect. All such applications for payment shall also show all Trade Contractors, including Major Contractors, by name and trade, the total amount of each contract or subcontract, the amount theretofore paid to each Trade Contractor as of the Closing Date date of such application, and the amount to be paid from the proceeds of the Construction Loan Advance to each Trade Contractor.
(iii) A General Contractor Affirmation of Payment (an “Affirmation of Payment”) (AIA Form G706) in substantially the form attached hereto as Exhibit M.
(iv) All invoices relating to all items of Exhibit 7.3.4.1Soft Costs identified in the Advance Request or Borrowers’ receipted bills therefor, or other reasonable proof of expenditure or payments for Soft Costs due reasonably acceptable to Lender.
(v) An Anticipated Cost Report in respect of the Project, which shall be reasonably satisfactory in form and substance to Lender and the Construction Consultant.
(vi) An endorsement to the Title Insurance Policy dated the date of such requested Construction Loan Advance and showing the sum Mortgage as a prior and paramount Lien on each of Revolving Credit Availability plus the Borrowers’ cash Properties, subject only to (A) the Permitted Encumbrances, (B) any other Liens or encumbrances consented to in writing by Lender, and cash equivalents (C) any other Liens which are then on handbeing contested in accordance with the provisions of Section 3.6(b) of the Mortgage, and which shall have the effect of increasing the coverage of the Title Insurance Policy by an amount equal to the amount of the Construction Loan Advance then being made, along with co-insurance or reinsurance in such forms and amounts as may be reasonably required by Lender. Any reinsurance agreements shall provide for direct access with the other title companies satisfactory to Lender.
(vii) (A) An updated lien waiver log, (B) duly executed conditional Lien waivers in the form set forth in Exhibit L-1 (progress payment) or L-3 (final payment) hereto, as applicable, from all Major Contractors who have performed work, for the work so performed, and/or who have supplied labor and/or materials, for the labor and/or materials so supplied, except for such work or labor and/or materials for which payment thereof is requested, as to which duly executed unconditional Lien waivers in the form set forth in Exhibit L-2 (progress payment) or L-4 (final payment) hereto, as applicable, shall be delivered to Lender with the next request for a Construction Loan Advance, and (C) duly executed unconditional Lien waivers in the form set forth in Exhibit L-2 (progress payment) or L-4 (final payment) hereto, as applicable, with respect to all payments which were requested to be paid with the immediately preceding Construction Loan Advance and from whom a conditional Lien waiver in the form set forth in Exhibit L-1 (progress payment) or L-3 (final payment) hereto, as applicable, was delivered in the immediately preceding request for a Construction Loan Advance.
(viii) An updated (A) Architect’s Certificate, (B) General Contractor’s Certificate, and (C) at Lender’s request, an updated Contractor’s Certificate from any Major Contractor, together with (1) copies of any amendments to the Architect’s Contract, General Contract, and any Major Contract (all of which amendments shall be approved by Lender as and to the extent Lender approval is required in accordance with the terms hereof) and (2) copies of any new contracts and subcontracts for the Project which do not constitute Major Contracts entered into subsequent to the date of the immediately preceding Draw Request.
(ix) A spreadsheet of Loan Budget Line Items in form reasonably satisfactory to Lender showing amounts expended under each case Line Item to date and amounts under each Line Item remaining to be paid out.
(x) Evidence that all Government Approvals necessary to permit the construction of that/those portion(s) of the Project to be funded with the proceeds of the proposed Construction Loan Advance have been obtained, including, without limitation, one or more acceptable building permits.
(xi) A monthly progress report from the General Contractor and/or the General Contractor, including, without limitation, a Loan Budget status (with respect to Hard Costs only), Construction Schedule status, Governmental Approval status, if applicable, and a description of any issues to be resolved between Borrowers and any designer or Trade Contractor, which report shall be reasonably satisfactory to Lender and Construction Consultant.
(xii) Evidence reasonably satisfactory to Lender that the notional amount of the Interest Rate Cap Agreement(s) with respect to the Construction Loan shall be no less than the Construction Loan Outstanding Principal Balance, after giving effect to the Loans proposed Construction Loan Advance, pursuant to be made on one or more modified or new Interest Rate Cap Agreements complying with the Closing Date and consummation terms of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;Section 2.2.7 hereof.
(iiixiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Lender and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents Construction Consultant shall have received and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as approved any changes to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestDisbursement Schedule.
Appears in 1 contract
Deliveries. (i) On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing including a pledge of all Collateral Documents as may be necessary to reflect valid of the equity in Hourglass Sands and perfected first priority Liens in the Collateral;High Point.
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;7.1.1.
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral.
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material consents consents, approvals and licenses required to effectuate the transactions contemplated hereby;.
(vii) All lessor consents allowing for, among other things, a Lien to be obtained upon any lease of the Borrower of the Real Property, from the lessors of such lease, as required by the Administrative Agent, in its sole discretion, to have such consents, which such consents shall be in form and substance acceptable to the Administrative Agent (the “Lessor Consents”).
(viii) To permit the refinancing by the Lenders of the loans outstanding under the 2014 Credit Agreement, (1) the Borrower shall request Loans in an amount sufficient to refinance the loans under the 2014 Credit Agreement by delivering to the Administrative Agent an appropriately completed irrevocable Loan Request not later than 11:00 a.m., on the first Borrowing Date (which shall be the Closing Date) pursuant to which Loans (to which the Base Rate Option applies) are requested; and (2) contemporaneously with the execution and effectiveness of this Agreement and utilizing a portion of the proceeds of the Loans, the Borrower shall pay in full all amounts outstanding under the 2014 Credit Agreement, including all unpaid principal, interest, breakage fees and all other fees and charges thereunder in order to accomplish the amendment and restatement thereof as of the Closing Date. Each Lender that was a bank under the 2014 Credit Agreement, by execution of this Agreement, waives all notice of prepayment of loans and all notice of termination of the commitments under the 2014 Credit Agreement, and consents to such termination and prepayment. In the event that the Borrower submits a Loan Request hereunder, then the Borrower agrees to indemnify the Lenders for any and all liabilities, losses, or expenses arising therefrom in accordance with the standards set forth in Section 5.10 [Indemnity], regardless of whether this Agreement has become effective.
(ix) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;with acceptable results.
(x) Results of searches Evidence that after giving effect to the transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity (or other evidence reasonably security available for the issuance of permits, including without limitation, letters of credit) to conduct its operations as contemplated in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent.
(xi) Evidence that all of Required Mining Permits with respect to the Loan Parties are in full force and effect in accordance with their terms.
(xii) Audited financial statements of Borrower for the fiscal year ended December 31, 2017, prepared in accordance with GAAP and consolidating schedules for the balance sheet, statement of income, retained earnings and cash flow of the Borrower certified (subject to normal year-end audit adjustments and without footnotes) by the Chief Executive Officer, President or Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, all as more fully described in Section 8.3.2 [Annual Financial Statements].
(xiii) The projected pro-forma financial projections (including balance sheets and statements of operations and cash flows) of the Borrower for each fiscal year from 2018 through 2021, which shall be satisfactory to the Administrative Agent (including all assumptions).
(xiv) Completion of all necessary FEMA flood zone diligence requirements.
(xv) Satisfactory completion and receipt of all third-party due diligence items, including, but not limited to the Energy Ventures Market Study, each in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent.
(xvi) indicating the absence An Authorized Officer of Liens on the assets of the each Loan PartiesParty, except for Permitted Liens acting in their capacities as such officers, shall have delivered a certificate in form and Liens for which termination statements and releases reasonably substance satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory as to the capital adequacy and solvency of each Loan Party after giving effect to the transactions contemplated hereby.
(xvii) A review of the amount and nature of all tax, ERISA, employee retirement benefit, environmental and all other contingent liabilities to which the Loan Parties may be subject.
(xviii) The Administrative Agent for and each Lender shall have received, in form and substance acceptable to Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the delivery of such termination statements and releases have been made;USA Patriot Act.
(xixix) An executed Collateral Access Agreement or other lien waiver agreement from A duly completed Compliance Certificate dated as of the lessor, or other applicable Person for Closing Date pursuant to which Borrower certifies that it shall be in compliance on a Pro Forma Basis with the fulfillment center covenants contained in Section 8.2.15 [Minimum Debt Service Coverage Ratio] and Section 8.2.16 [Maximum Leverage Ratio] upon the main distribution center as required under closing and funding of the Security Agreement; andLoans hereunder.
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On No later than the Closing DateDate (or such later date as Agent shall specify in its sole discretion), the Administrative Agent shall have received each of the following (which, in the case of instruments and documents, must (unless otherwise stated below) be originals, duly executed, and in form and substance reasonably satisfactory to the Administrative Agent:):
(i) A certificate of each of This Agreement and the Loan Parties signed Notes duly executed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010Company;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Delegation Form;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all resolutions and other corporate or other organizational action taken by each Loan Party the Company in connection with this Agreement and the other Loan Documents; (bB) the names and titles of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents the Organizational Documents of the Company as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Company in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed A security agreement duly executed by an Authorized Officer of each Loan Party and the Company granting to Agent, for the benefit of the Lending Parties, a first priority Lien, subject only to Permitted Liens, on all appropriate financing statements and appropriate stock powers and certificates and other documentsPersonal Property Collateral of the Company, instruments and agreements evidencing the pledged Collateralwhether now owned or hereafter acquired, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collaterala UCC-1 Financing Statement;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Evidence, including a Lien search in acceptable scope from a provider satisfactory to Agent, that the security interests in and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPLiens on the Collateral are valid, counsel for the Loan Partiesenforceable, each dated as of the Closing Date and opining as properly perfected in a manner acceptable to the matters set forth in Schedule 6.1.1Agent and prior to all other Liens (other than Permitted Liens);
(vi) An executed landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator, or other applicable Person for each Collateral location as required under or in connection with any security agreement;
(vii) A mortgage or deed of trust in recordable form and duly executed by an Authorized Officer of the Company, in a face amount of no less than $132,000,000, granting to Lender a first priority Lien (subject only to Permitted Liens) on the Real Property Collateral;
(viii) A commitment to issue an ALTA lender’s title insurance policy, in a form and from a title insurance company acceptable to Agent, in a face amount of no less than $66,000,000, insuring Lender’s first priority Lien on the Real Property Collateral, with only such exceptions as may be approved by Agent, together with such endorsements as Agent may require (the “Title Policy”);
(ix) An appraisal of the Real Property Collateral which indicates that the Real Property Collateral has an appraised value of $110,000,000 or more and which is otherwise satisfactory to Agent;
(x) A survey of the Real Property Collateral satisfactory to Agent, with identification of each item with the corresponding exception number from the Title Policy, together with a certificate of the surveyor or other Person acceptable to Agent that the Real Property Collateral is or is not, as the case may be, in a special flood hazard area for purposes of the National Flood Insurance Program;
(xi) A subordination agreement duly executed by Bunge and ICM containing, among other things, subordination provisions related to the Subordinated Debt;
(xii) Evidence that the Company has taken all actions required under the Flood Laws or requested by Agent to assist in ensuring that Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing Agent with the address or GPS coordinates of each structure on any real property that will be subject to mortgages or deeds of trust, and to the extent required under Section 6.6, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral;
(xiii) A written opinion of counsel for the Company, dated no later than the Closing Date, in form and substance and from counsel reasonably satisfactory to Agent;
(xiv) Evidence that adequate insurance, including flood insurance on any Real Property Collateral, if applicable, required to be maintained under this Agreement or any other Loan Document is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel (retained, engaged or employed by Agent) naming Agent, for the Administrative Agent benefit of the Lending Parties, as additional insured insured, mortgagee and lender loss payee;
(viixv) A duly completed Compliance Certificate in form and substance satisfactory to Agent, as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing DateMay 31, 2014, signed by an Authorized Officer of DSWthe Company, together with (A) the financial statements required by Section 6.1(a) for the month ended May 31, 2014 and (B) a balance sheet for the month ended May 31, 2014, prepared on a pro forma basis which gives effect to the consummation of the transactions contemplated by this Agreement, any dividends or other distributions contemplated to be made with the proceeds of the Loans and any principal or interest payments on the Subordinated Debt contemplated to be made with the proceeds of the Loans, in each case, as of May 31, 2014. The Compliance Certificate submitted to Agent pursuant to this Section 4.1(a)(xv) may be based upon the information set forth in the pro forma balance sheet required under clause (B) above;
(viiixvi) All Evidence of filing of all Official Body consents, approvals and filings, and all material third party consents and approvals required to effectuate the transactions contemplated hereby;
(ixxvii) A Phase I environmental assessment of the Real Property Collateral performed by an environmental assessment firm satisfactory to Agent or other environmental assessments and due diligence satisfactory to Agent;
(xviii) Evidence of compliance with Section 6.2 and a favorable determination of eligibility of the Company to borrow from Lender;
(xix) A payoff letter from AgStar Financial Services, PCA confirming the amount required to pay off all Indebtedness owing to such lender by the Company and confirming the discharge, release and termination of all Liens on the property of the Company upon receipt of such payoff amount;
(xx) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder applicable maturity dates for the Subordinated Debt have been paid and all Liens securing such obligations have been releasedextended to July 1, 2023 or later;
(xxxi) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets A copy of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to Risk Management Policy of the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementCompany; and
(xiixxii) Such All other documents, instruments and agreements in connection with such transactions Loan Documents as the Administrative Agent or its counsel may reasonably requestrequest in connection with this Agreement or any of the foregoing documents, instruments, or agreements.
Appears in 1 contract
Sources: Credit Agreement (Southwest Iowa Renewable Energy, LLC)
Deliveries. On The Administrative Agent’s receipt of the Closing Datefollowing, the Administrative Agent shall have received each of which shall be originals or emailed PDFs (followed promptly by originals upon request) unless otherwise specified, each properly executed by a Responsible Officer of the following Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of Agent and each of the Loan Parties signed Lenders: executed counterparts of this Agreement; an original Note executed by an Authorized Officer the Borrower in favor of each BorrowerLender requesting a Note at least five (5) Business Days prior to the Effective Date; such certificates of resolutions or other action, dated incumbency certificates and/or other certificates of Responsible Officers as the Closing Date stating that (v) all representations Administrative Agent may reasonably require evidencing the identity and warranties authority of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan DocumentsDocuments to which the Borrower is a party; (b) such documents and certifications as the names Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed and that the Borrower is validly existing, and in good standing in its jurisdiction of organization, including certified copies of the Authorized Officers authorized to sign the Loan Borrower’s Organization Documents and their true signatures; and (c) copies certificate of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates good standing from the appropriate state officials as to the continued existence and good standing Borrower’s jurisdiction of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by organization; an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory addressed to the Administrative Agent and its counsel naming each Lender; and a certificate of a Responsible Officer of the Administrative Agent as additional insured Borrower certifying that (A) the representations and lender loss payee;
(vii) A duly completed Compliance Certificate warranties of the Borrower contained in Article V are true and correct in all material respects on and as of the last day of Effective Date and (B) the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiicondition specified in Section 4.02(b) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestsatisfied.
Appears in 1 contract
Sources: Revolving Credit Agreement (Darden Restaurants Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, no litigation which is materially adverse to the Borrower and (y) its Subsidiaries, taken as a whole, exists and no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto effect in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeecounsel;
(viivi) A duly completed Compliance Certificate and a certificate as to the Solvency of the Borrower as of the last day of the fiscal quarter of DSW the Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrower;
(vii) A Lien search in acceptable scope and with acceptable results;
(viii) All material consents consents, approvals and licenses required to effectuate the transactions contemplated herebyhereby have been obtained;
(ix) Evidence that The projected financial projections (including balance sheets, statements of operations and cash flows) of the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedBorrower for the 2013 through 2017 fiscal years;
(x) Results The consolidated and consolidating audited year-end financial statements for and as of searches or other evidence reasonably the three (3) fiscal years ended December 31, 2012 of the Borrower, together with (i) unaudited interim financial statements for the most recently ended fiscal quarter and a comparison against the current year-to-date financial statements and (ii) copies of the unqualified reports of independent certified public accounts that conducted such annual audits;
(xi) Evidence that after giving effect to the transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity to conduct its operations as projected in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent;
(xii) An Authorized Officer of the Borrower shall have delivered a certificate in form and substance satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets capital adequacy and solvency of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Borrower after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementtransactions contemplated hereby; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) An executed counterpart of this Amendment executed on behalf of (i) each of the Loan Parties, (ii) the Administrative Agent and (iii) each Lender and Issuing Lender.
(ii) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Fourth Amendment and Restatement Effective Date stating that (vx) all representations and warranties certifying as to the satisfaction of the Loan Parties conditions set forth in this Agreement are true Section 2.2(b) and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wk) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) stating that no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as the date of the Closing Date in substantially last audited financial statements of the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect Borrower delivered to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;Administrative Agent.
(iii) A certificate dated the Closing Fourth Amendment and Restatement Effective Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Amendment and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) there having been no changes to its organizational documents, or, if there have been changes, copies of its organizational documents as in effect on the Closing Fourth Amendment and Restatement Effective Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each its state where organized or qualified to do business;of organization.
(iv) This Agreement Opinion addressed to the Administrative Agent and each of the other Loan Documents signed by an Authorized Officer of each Loan Party Lenders and all appropriate financing statements dated the Fourth Amendment and appropriate stock powers and certificates and other documents, instruments and agreements evidencing Restatement Effective Date as to such matters incident to the pledged Collateral, and evidence of filing of all Collateral Documents transactions contemplated herein as the Administrative Agent may be necessary to reflect valid and perfected first priority Liens in the Collateral;
reasonably request from (vi) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ LLP, as Pennsylvania and Delaware counsel to the Loan Parties, (ii) ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., as Colorado counsel to the Loan Parties and (iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as Indiana counsel for to the Loan Parties, each dated as of the Closing Date .
(v) A Lien search in acceptable scope and opining as to the matters set forth in Schedule 6.1.1;with acceptable results.
(vi) Evidence With respect to each structure on any real property that adequate is encumbered by a Mortgage, the Administrative Agent shall have received a life-of-loan Federal Emergency Management Agency flood hazard determination, and, to the extent any such structure is located in a special flood hazard area, the Administrative Agent shall have received (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and (ii) evidence of flood insurance as required to be maintained under this Agreement is in full force the Amended and effect, with additional insured and lender loss payable endorsements attached thereto Restated Credit Agreement.
(vii) A certificate in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, capital adequacy and solvency of each Loan Party after giving effect to the transactions contemplated hereby signed by an Authorized Officer of DSW;each Loan Party, acting in its capacity as such officers.
(viii) All material consents required Such documentation and other information requested by the Administrative Agent and each Lender in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, in form and substance acceptable to effectuate the transactions contemplated hereby;Administrative Agent and each Lender.
(ix) Evidence that An executed Loan Request with respect to the Existing Loan Agreement has been terminatedInitial Term A Loans no later than (i) in the case of Initial Term A Loans to which the Term SOFR Rate Option applies, 10:00 a.m., two (2) Business Days prior to the Fourth Amendment and all outstanding obligations thereunder have been paid Restatement Effective Date and all Liens securing such obligations have been released;(ii) in the case of Initial Term A Loans to which the Base Rate Option applies, 10:00 a.m., one (1) Business Day prior to the Fourth Amendment and Restatement Effective Date.
(x) Results of searches or other evidence reasonably satisfactory An executed prepayment notice with respect to the Administrative Agent 2023 Term Loans (as defined in each case dated as of a date reasonably satisfactory the Credit Agreement) by 1:00 p.m. at least one (1) Business Day prior to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Fourth Amendment and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;Restatement Effective Date.
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under copy of the Security Agreement; and, duly executed by each Loan Party (including Hallador Renewables, LLC and its Subsidiaries).
(xii) Such other documentsAn executed copy of the Pledge Agreement, instruments duly executed by each Loan Party (including Hallador Renewables, LLC and agreements in connection with such transactions as its Subsidiaries), Hallador Sands, LLC and Hourglass Sands, LLC.
(xiii) An executed copy of the Administrative Agent or Collateral Assignment, duly executed by each Loan Party (including Hallador Renewables, LLC and its counsel may reasonably requestSubsidiaries).
(xiv) An executed copy of the Guaranty Agreement, duly executed by each of the Guarantors (including Hallador Renewables, LLC and its Subsidiaries).
Appears in 1 contract
Deliveries. On At the Closing: (a) Seller will deliver, or cause to be delivered, the following to Buyer: (i) certificates evidencing the certificated Shares, if such Shares are certificated, accompanied by the Stock Power duly executed by Seller; (ii) the officer’s certificate described in Section 6.7; (iii) a Form W-9 properly completed by Seller (or, if Seller is a disregarded entity, the Person treated as the owner of Seller for federal Income Tax purposes); (iv) the resignations of all directors and officers of the Sale Entities that are not Business Employees; (v) a certificate of good standing or the equivalent of recent date for each of the Sale Entities from their respective jurisdictions of organization; (vi) all minute books, membership interest transfer ledgers (if any), and seal (if any) of each Sale Entity in the possession of any of the Sale Entities, Seller, or any of their respective Affiliates; (vii) two copies of a USB containing all documents posted in the virtual data room hosted by Intralinks under “Project Genoa” at any time up to, and including, the Closing Date, the Administrative Agent shall have received and a true, complete and correct index thereof; (viii) original copies, or if unavailable copies, of each guarantee, bond, letter of credit and other financial assurance in favor of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating Sale Entities that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects is outstanding as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, Closing; (wix) the Loan Parties are in compliance with each of the covenants Transition Services Agreement, duly executed by Seller; and conditions hereunder, (x) no Potential Default or Event of Default existsthe Trademark Assignment, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed duly executed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇.
(b) Buyer will deliver, or cause to be delivered, the following to Seller: (i) the Base Purchase Price required by Section 2.1(b) of this Agreement, plus the Estimated Closing Payment Amount and, if applicable, the Support Obligation Payment; (ii) the officer’s certificate described in Section 7.5; (iii) reasonable evidence of the replacement, termination and release or provision of back-to-back guarantees for all Support Obligations, in each case, in accordance with Section 5.8(c); and (iv) the Transition Services Agreement, duly executed by ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On or prior to the Closing Effective Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Holdings signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Effective Date stating that (vy) all representations and warranties of the Loan Credit Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, and (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xz) no Potential Default or Event of Default or Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Effective Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesHoldings, certifying as appropriate as to: (a) all action taken by each Loan Credit Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its the organizational documents of the Credit Parties as in effect on the Closing Effective Date certified by the appropriate state official where such documents are filed in a state office together with certificates dated as of a recent date from the appropriate state officials as to the continued existence and good standing of each Loan Credit Party in each state where organized or qualified organized;
(iii) A certificate dated the Effective Date and signed by a Financial Officer of Holdings, certifying as to do businessthe Solvency of the Consolidated Entities, on a consolidated basis, after giving effect to the Transactions (it being agreed that such certificate substantively in the form attached to the Existing Credit Agreement is acceptable to the Administrative Agent);
(iv) This Agreement and amendments to the Security Agreement and amendments to Mortgages, each of the other Loan Documents signed by an Authorized Officer of each Loan Party the Credit Parties party hereto and all appropriate financing statements and appropriate stock powers and certificates and other documentsthereto, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralapplicable;
(v) A customary written opinion of each of (A) ▇▇▇▇▇▇▇▇▇ LLP, as special counsel for the Credit Parties, dated the Effective Date, and (B) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as local counsel for the Loan Parties, each dated as of the Closing Date and opining Credit Parties as to corporate matters in the matters set forth in Schedule 6.1.1State of Oregon;
(vi) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee, and evidence that the Credit Parties have taken all actions required under the Flood Insurance Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each Flood Structure that will be subject to a mortgage in favor of the Administrative Agent, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such Flood Structure becoming collateral;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter Fiscal Quarter of DSW Borrower most recently ended prior to the Closing DateEffective Date for which a 10-K or 10-Q has been filed with the SEC, signed by an Authorized a Financial Officer of DSWHoldings;
(viii) All material consents required Lien searches with respect to effectuate each Credit Party in the transactions contemplated herebyjurisdiction of its formation reflecting no Liens other than those permitted hereunder;
(ix) Evidence that Acceptable valuation report of the Existing Loan Agreement has been terminated, Credit Parties’ and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;their Subsidiaries’ assets; and
(x) Results Execution of searches an amendment or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets an amendment and restatement of the Loan Partiesexisting Permitted Receivables Financing reflecting an expiration date thereof that is not earlier than April 1, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request2021.
Appears in 1 contract
Deliveries. On (a) Until the Closing DateClosing, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory Sellers shall ---------- deliver to Buyer promptly such periodic financial and/or operating data with respect to the Administrative Agent:
(i) A certificate Companies and the Business as Buyer may reasonably request, including, without limitation, any audited financial statements that may have been prepared, provided that nothing herein shall require Phonoscope or the -------- Companies to prepare audited financial statements. Without limiting the foregoing, both before and after the Closing, the Sellers shall provide Buyer with access to all audited financial statements and workpapers of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating its internal and external accountants and shall procure from all such external accountants all consents necessary for such access and otherwise necessary for Buyer to comply with any reporting requirements that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar importBuyer, in which case they are true and correct in all respectsits sole discretion, (w) determines that it may have under the Loan Parties are in compliance with each Securities Exchange Act of the covenants and conditions hereunder1934, (x) no Potential Default or Event of Default existsas amended, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash rules and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness regulations promulgated thereunder or under the Existing Loan Agreement (including in respect terms of any outstanding letters indenture or other instrument of credit issued thereunder) Buyer and payment of its affiliates, provided that Buyer -------- shall pay all fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party such accountants reasonably incurred in connection complying with this Agreement and the other Loan Documents; Section 6.5(a).
(b) the names of the Authorized Officers Buyer is hereby authorized to sign deliver a copy of any financial statement or certificate delivered pursuant to this Section 6.5 to any Governmental Body having jurisdiction over it or any financing source that requests such information; provided, however, that Buyer shall take any and all --------- ------- steps as may be reasonable to maintain the Loan Documents confidentiality of such information and material in keeping with their true signatures; obligations to maintain information in confidence under the terms hereof and all prior agreements still in force and effect.
(c) Each of the Sellers shall also deliver to Buyer, promptly upon receipt by it or any of the Companies, any other reports or other copies of its organizational documents as in effect on any reports from Phonoscope's or any of the Closing Date certified by Companies' auditors, copies of any correspondence to or from or filings with the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as FCC or any other Governmental Body relating to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestBusiness.
Appears in 1 contract
Sources: Purchase Agreement (Optel Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that that: (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no since September 30, 2020, there has not occurred any Material Adverse Change has occurred since January 30, 2010Change;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (b) the names and titles of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational bylaws, limited liability company agreement or other applicable governing document as in effect on the Closing Date; and (d) copies of its formation documents as in effect on the Closing Date certified as of a recent date by the appropriate state official where such documents are filed in a state office office, together with certificates as of a recent date from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement Agreement, the Notes and each of the other Loan Documents signed duly executed by an Authorized Officer and delivered to the Administrative Agent for the benefit of each the Lenders, together with all schedules to the Loan Party Documents and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence of filing of all Collateral Documents such other documents as may be are necessary to reflect valid grant and perfected first priority Liens perfect Prior Security Interests to the Administrative Agent for the benefit of the Lenders in the CollateralCollateral held by the Loan Parties;
(viv) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date in form and opining as substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent and its counsel;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured ;
(vi) Evidence that all requisite Official Bodies and lender loss payable endorsements attached thereto in form and substance satisfactory material third parties shall have approved or consented to the Administrative Agent Transactions to the extent required, all applicable notice or appeal periods shall have expired and its counsel naming there shall be no governmental or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Administrative Agent as additional insured and lender loss payeeTransactions;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 8.2.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent) indicating (the absence “Existing Indebtedness Refinancing”);
(viii) Lien searches in reasonably acceptable scope and with reasonably acceptable results;
(ix) A certificate of Liens on an Authorized Officer of the assets Borrower as to the Solvency of each of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory Parties after giving effect to the Administrative Agent are being tendered concurrently with such extension of credit or Transactions and the other arrangements reasonably satisfactory transactions contemplated to occur on the Administrative Agent for Closing Date and the delivery of such termination statements initial Loans hereunder;
(x) The Statements and releases have been madethe Financial Projections;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessorAbsence of any Material Adverse Change since September 30, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement2020; and
(xii) Such At least three (3) Business Days prior to the Closing Date, all documentation and other documentsinformation with respect to the Loan Parties required by regulatory authorities under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, instruments including, without limitation, the USA Patriot Act, and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestany required Certificate of Beneficial Ownership.
Appears in 1 contract
Deliveries. On At the Closing DateClosing:
(a) Seller will deliver, or cause to be delivered, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentBuyer:
(i) A certificate the Assignment of each of the Loan Parties signed Membership Interests duly executed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇;
(ii) the officer’s certificate described in Section 6.7;
(iii) a Form W-9 properly completed by Seller (or, if Seller is a disregarded entity, the Person treated as the owner of Seller for federal Income Tax purposes);
(iv) the resignations of all directors and officers of the Sale Entities that are not Business Employees;
(v) a certificate of good standing or the equivalent of recent date for each of the Sale Entities from their respective jurisdictions of organization;
(vi) all minute books, membership interest transfer ledgers (if any), and seal (if any) of each Sale Entity in the possession of any of the Sale Entities, Seller, or any of their respective Affiliates;
(vii) two copies of a USB containing all documents posted in the virtual data room hosted by Intralinks under “Project Genoa” at any time up to, and including, the Closing Date, and a true, complete and correct index thereof;
(viii) original copies, or if unavailable copies, of each guarantee, bond, letter of credit and other financial assurance in favor of the Sale Entities that is outstanding as of the Closing;
(ix) the Transition Services Agreement, duly executed by Seller.
(b) Buyer will deliver, or cause to be delivered, the following to Seller:
(i) the Base Purchase Price required by Section 2.1(b) of this Agreement, plus the Estimated Closing Payment Amount and, if applicable, the Support Obligation Payment;
(ii) the Assignment of Membership Interests, duly executed by ▇▇▇▇▇▇ ▇▇▇▇ & ;
(iii) the officer’s certificate described in Section 7.5;
(iv) reasonable evidence of the replacement, termination and release or provision of back-to-back guarantees for all Support Obligations, in each case, in accordance with Section 5.8(c); and
(v) the Transition Services Agreement, duly executed by ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On Subject to Section 8.1.15 [Post-Closing Requirements], on the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vx) all each of the representations and warranties of the Loan Parties set forth in Article 6 [Representations and Warranties] of this Agreement are true and correct in all material respects (without duplication of any materiality qualifiers contained therein) as of the Closing Date, Date (except to the extent such representations and warranties are modified by “materiality” which relate solely to an earlier date or “Material Adverse Change” or words of similar importtime, in which case they are representations and warranties shall be true and correct in all respectson and as of the specific dates or times referred to therein), (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) since December 31, 2018, no Material Adverse Change has occurred since January 30, 2010occurred;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Domestic Loan Parties, or the equivalent authorized signatory for the Foreign Borrower and Exploit BV (which for the purposes of this sub-clause (ii) shall be included in the definition of Loan Party), certifying as appropriate as to: (a) all action taken the true and complete copy of resolutions duly adopted by each the board of directors of such Loan Party (or its managing general partner, managing member or equivalent) and, if required, shareholders of such Loan Party, authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in connection with this Agreement the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the other Loan DocumentsClosing Date; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with with, to the extent available in the relevant jurisdiction, certificates from the appropriate state officials as to the continued existence and good standing of each such Loan Party in each (i) the state where such Loan Party is organized and (ii) in all other jurisdictions where the property owned or qualified leased by such Loan Party or the nature of the business transacted by it or both makes such licensing or qualification necessary, except as to this clause (ii) where failure to do businessso would not reasonably be expected to result in a Material Adverse Change and (d) to the extent required, a copy of the positive works council advice and the request for advice in relation to each of the Foreign Borrower and Exploit BV;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer and to the extent required under applicable requirements of each Loan Party and all Law, appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral;
(iv) Written opinions of counsel (including local counsel) for the Loan Parties (or, and evidence of filing of all Collateral Documents as may be necessary in relation to reflect valid and perfected first priority Liens in the CollateralDutch Pledge Agreements, counsel for the Administrative Agent), dated the Closing Date;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and or lender loss payable endorsements endorsements, as applicable, attached thereto in form and substance reasonably satisfactory to the Administrative Agent demonstrating compliance with the requirements set forth in Section 8.1.3 [Maintenance of Insurance];
(vi) Uniform Commercial Code financing statements in appropriate form for filing under the Uniform Commercial Code and its counsel naming such other documents under applicable requirements of Law in each jurisdiction as may be necessary or appropriate, or, in the Administrative Agent as additional insured reasonable opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Collateral Documents. All certificates, agreements or instruments representing or evidencing the pledged securities accompanied by instruments of transfer and lender loss payeestock powers undated and endorsed in blank have been delivered to the Collateral Agent;
(vii) A duly completed Compliance Certificate evidencing pro forma compliance with the Financial Covenants as of the last day of the fiscal quarter of DSW most recently Parent ended prior to the Closing DateMarch 31, 2019, signed by an Authorized Officer of DSWParent;
(viii) All material consents required to effectuate the transactions contemplated herebyLien searches in acceptable scope and with acceptable results;
(ix) Evidence that A perfection certificate, in form and substance reasonably acceptable to the Existing Administrative Agent, executed and delivered on behalf of the Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedParties by an Authorized Officer of each Loan Party;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (Evidence, in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases that since December 31, 2018 there shall not have occurred any change, development or event that has or would reasonably satisfactory be expected to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;cause a Material Adverse Change; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessorPro forma projections (including a pro forma closing balance sheet, or other applicable Person pro forma statements of operations and cash flow) for the fulfillment center and fiscal years 2019 through 2023, including assumptions used in preparing the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestforecast financial statements.
Appears in 1 contract
Sources: Credit Agreement (Stoneridge Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct (A) in the case of representations and warranties qualified by materiality, in all respects and (B) in the case of other representations and warranties, in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default exists, or Potential Default exists and (yd) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Authorized Officer of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official Official Body where such documents are filed in a state office with an Official Body together with certificates from the appropriate state officials Official Body as to the continued existence and good standing of each Loan Party in each state jurisdiction where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion The executed legal opinions of each of ▇(a) O▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇Frome W▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date Date, (b) Q▇▇▇▇▇▇ & B▇▇▇▇ LLP, Wisconsin local counsel for the Loan Parties, dated the Closing Date, and opining as (c) S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Canadian local counsel for the Loan Parties, dated the Closing Date, in each case in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent for the benefit of the Secured Parties as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, form FRU-1 signed by an Authorized Officer of DSWOfficer;
(viiivii) All material consents consents, regulatory approvals and licenses required to effectuate effectuate, the transactions and confirmation of an absence of any legal or regulatory prohibition with respect to, the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as Receipt of a date business plan and budget of each of the Loan Parties on a consolidated basis, including forecasts prepared by management, of consolidated balance sheets, statements of operations and (on an annual basis only) statements of cash flow, in form and substance reasonably satisfactory to the Administrative Agent, on an annual basis through fiscal year 2026;
(ix) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases The Administrative Agent shall have received:
(a) reasonably satisfactory evidence that all certificates, agreements or instruments representing or evidencing the Pledged Securities and Intercompany Notes (each as defined in the Security Agreement and the Pledge Agreement), accompanied by instruments of transfer and stock powers undated and endorsed in blank have been delivered to the Administrative Agent are being tendered concurrently with Agent; provided that such extension certificates, agreements or instruments may be delivered within two Business Days of credit the Closing Date if not delivered on or other arrangements prior to the Closing Date;
(b) reasonably satisfactory evidence that the Borrowers have used commercially reasonable efforts to obtain all the other certificates, agreements, including Control Agreements (as defined in the Security Agreement), or instruments necessary to perfect the Administrative Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each Loan Party (as each such term is defined in the Security Agreement and to the extent required by such Agreements) and, if applicable, such certificates, agreements or instruments have been delivered to the Administrative Agent for the delivery of such termination statements and releases have been madeAgent;
(xic) An executed Collateral Access Agreement UCC and PPSA financing statements (including Fixture Filings) in appropriate form for filing under the UCC, PPSA, as applicable, filings with the United States Patent and Trademark Office, United States Copyright Office and Canadian Intellectual Property Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or other lien waiver agreement from appropriate or, in the lessoropinion of the Administrative Agent, desirable to perfect the Liens created, or other applicable Person for purported to be created, by the fulfillment center and the main distribution center as required under the Security AgreementCollateral Documents; and
(xiid) certified copies of UCC, PPSA, United States Patent and Trademark Office and United States Copyright Office and Canadian Intellectual Property Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) after giving effect to the Transactions; and
(x) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrowera certificate, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing First Restatement Effective Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: to (ai) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; , (bii) the names of the Authorized Officers authorized to sign the Loan Documents this Agreement and their true signatures; signatures and (ciii) copies of its organizational documents Organizational Documents as in effect on the Closing First Restatement Effective Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do business; and
(ii) at least five (5) Business Days prior to the First Restatement Effective Date, (i) all documentation and other information requested by (or on behalf of) any Lender in order to comply with requirements of Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to Borrower.
(iii) a certificate of the Borrower signed by a Compliance Officer of the Borrower, dated as of the First Restatement Effective Date, stating that (a) all representations and warranties of the Loan Parties herein and in the other Loan Documents are true and correct, except such representations and warranties that are not qualified in this Agreement by reference to materiality or a Material Adverse Change are true and correct in all material respects as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty are true and correct in all respects or in all material respect, as applicable, as of such earlier date), (b) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (c) no Event of Default or Default exists, (d) since April 30, 2018, there has occurred no Material Adverse Change, (e) each of the Loan Parties has satisfied each of the closing conditions required to be satisfied by it hereunder, (f) all material governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs, and (g) there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(iv) This evidence that there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(v) this Agreement and each of the other Loan Documents (including each Mortgage and each other Collateral Document as the Administrative Agent may require) signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(vvi) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local and regulatory counsel required by the Administrative Agent), dated as of the Closing Date and opining as First Restatement Effective Date;
(vii) [reserved];
(viii) a certificate of a Compliance Officer of the Borrower setting forth (A) the calculation, calculated on a pro forma basis for the twelve consecutive month period ending most recently prior to the matters First Restatement Effective Date, of the Net Total Leverage Ratio as of the First Restatement Effective Date after giving effect to the Credit Extension occurring at the time of the First Restatement Effective Date, (B) showing compliance with the financial covenant set forth in Schedule 6.1.1Section 8.1 and (C) setting for a calculation of the Special Project Available Amount as of the First Restatement Effective Date;
(viix) Evidence a duly completed, executed Loan Request for each Loan or request for Credit Extension for each Letter of Credit requested to be made on the First Restatement Effective Date, including notice of election as to Interest Periods (if applicable);
(x) a duly completed, executed Perfection and Diligence Certificate signed by a Compliance Officer of each of the Loan Parties;
(xi) a duly completed, executed Solvency Certificate signed by a Compliance Officer of each of the Loan Parties;
(xii) evidence that adequate insurance all material governmental and third-party consents, subordinations or waivers, as applicable, required to be maintained under this Agreement is effectuate the transactions contemplated hereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(xiii) a Lien search with additional insured respect to the Borrower and lender loss payable endorsements attached thereto each other Loan Party, in form and substance scope satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured with results showing no Liens other than Permitted Liens and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably otherwise satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xixiv) An executed Collateral Access true, correct and complete copies of all Material Agreements not already delivered pursuant to the Existing Credit Agreement or other lien waiver another clause of this Section 4.1;
(xv) if requested by the Administrative Agent, an executed landlord agreement from the lessor, warehouse operator or other applicable Person for each leased location with Collateral valued in the fulfillment center aggregate in excess of $1,500,000, subordinating such Person’s Lien in goods stored at that location to the Prior Security Interest of the Administrative Agent and the main distribution center as required under the Security Agreement; and
(xii) Such containing such other documents, instruments terms and agreements in connection with such transactions provisions as the Administrative Agent or its counsel may shall reasonably request.require;
Appears in 1 contract
Sources: Credit Agreement (Alaska Communications Systems Group Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all the representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are Loan Documents shall then be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunderhereunder and under the Loan Documents, (x) no Potential Default or Event of Default existsshall have occurred prior to or will result immediately following the Closing Date and the borrowing of any Loans on the Closing Date, and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of each Borrower delivered to the Administrative Agent (and the Administrative Agent and Required Lenders shall not have otherwise determined) and (z) the conditions stated in this Section 7.1 and Section 7.3 [Each Loan or Letter of Credit] have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock the parties thereto;
(iv) Appropriate transfer powers and stock or other certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance reasonably satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance reasonably satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee, as applicable;
(vii) A duly completed Compliance Certificate for the Loan Parties as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWthe Borrowers, determined on a pro forma basis;
(viii) All material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder Indebtedness not permitted under Section 9.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(x) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Lien searches in acceptable scope and Liens for which termination statements and releases with reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An For this clause (xi) only, the Loan Parties shall use commercially reasonable efforts to deliver the following: an executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location, as further required under the Security Agreement;
(xii) The Statements and the Projections;
(xiii) At least five (5) days prior to the Closing Date, the Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender such documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(xiv) All legal (including tax implications) and regulatory matters shall be satisfactory to the Administrative Agent and Lenders, including but not limited to compliance with all applicable requirements of Regulations U, T and X of the Board of Governors of the Federal Reserve System. The Administrative Agent’s counsel shall have completed all legal due diligence;
(xv) All governmental and third party approvals necessary in connection with the financing contemplated hereby and the continuing operations of the Borrowers and their Subsidiaries (including shareholder approvals, if any) shall have been obtained on satisfactory terms and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing or any of the transactions contemplated hereby;
(xvi) The corporate structure, capital structure, other debt instruments, material accounts and governing documents of the Borrowers and their affiliates shall be acceptable to the Administrative Agent;
(xvii) No Material Adverse Change shall have occurred from the information previously supplied to the Administrative Agent;
(xviii) The ERISA and labor matters affecting the Borrowers and their Subsidiaries shall be acceptable to the Administrative Agent;
(xix) Each document (including any Uniform Commercial Code financing statement and any IP Security Agreement) required by this Agreement, any related agreement or under law, or reasonably requested by Administrative Agent to be filed, registered or recorded in order to create, in favor of Administrative Agent, a perfected security interest in or lien upon the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested; and
(xiixx) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each the Borrower, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, ; (wx) the Loan Parties are Borrower is in compliance with each of the covenants and other conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of ADS delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan the Borrower Party in each state where organized or qualified to do and in a state listed on Schedule 6.
1.1 where the Borrower maintains a principal place of business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party Officer, which shall be in form and all appropriate financing statements substance reasonably satisfactory to the Administrative Agent and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralAgent;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1, which shall be in form and substance reasonably satisfactory to the Administrative Agent;
(viv) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeecounsel;
(vi) [Intentionally Omitted];
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby, including all regulatory approvals and licenses, absent any legal or regulatory prohibitions or material restrictions;
(viii) [Intentionally Omitted];
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released[Intentionally Omitted];
(x) Results of searches or other evidence reasonably satisfactory to Evidence that the Administrative Agent (ADS Credit Agreement has been entered into in each case dated as of a date reasonably satisfactory to accordance with the Administrative Agent) indicating terms and conditions set forth in the absence of Liens on the assets of the Loan Parties, except for Permitted Liens commitment letter and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeterm sheet applicable thereto;
(xi) An executed Collateral Access Evidence that the indebtedness and obligations under the Existing Credit Agreement or other lien waiver agreement have been amended and restated and shall from and after the lessor, or other applicable Person for the fulfillment center Closing Date be evidenced by this Agreement and the main distribution center as required under the Security Agreementother Loan Documents; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Revolving Credit Facility (Advanced Drainage Systems, Inc.)
Deliveries. On the Closing DateAt Closing, the Administrative Agent Company shall have received each deliver the following items to the Investor, against payment of the following in form and substance reasonably satisfactory to Subscription Price (after deducting the Administrative AgentDeposit) by the Investor:
(a) (i) A certificate of each a copy of the Loan Parties signed by an Authorized Officer register of each Borrower, dated the Closing Date stating that (v) all representations and warranties members of the Loan Parties set forth in this Agreement are true and correct in all material respects applicable Group Company as at the date of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans transactions contemplated hereby, certified by a director of the respective Group Company to be made a true and complete copy thereof, (ii) a copy of the register of directors of the applicable Group Company as at the date of the Closing, certified by a director of the applicable Group Company to be a true and complete copy thereof, and (iii) a table showing the capitalization of the Company on a fully-diluted basis immediately after the Closing;
(b) duly issued share certificate(s) to the Investor representing the Shares subscribed for by the Investor in the Closing;
(c) a compliance certificate dated on the Closing Date signed by each Warrantor or a duly authorized representative of each Warrantor, as applicable, satisfactory to the Investor and consummation its counsel certifying that all of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including conditions set forth in respect of any outstanding letters of credit issued thereunder) Section 7 have been fulfilled, and payment of fees attaching and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date certifying as true and signed by the Secretary or an Assistant Secretary of each complete a copy of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Company's Memorandum and the other Loan Documents; (b) the names Articles of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Association as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDate;
(ivd) This Agreement a certificate of good standing issued by the Registrar of Companies of the Cayman Islands dated no earlier than fifteen (15) Business Days prior to the Closing certifying that the Company has been duly incorporated, has paid all required fees and taxes, and is validly existing and in good standing under the laws of the Cayman Islands;
(e) a certificate of good standing or its equivalent issued by the relevant authority in the place of incorporation of each of the other Loan Documents signed by an Authorized Officer Global Market Subsidiaries, if applicable, dated no earlier than fifteen (15) Business Days prior to the Closing certifying that each of each Loan Party the Global Market Subsidiaries, as the case may be, has been duly incorporated, has paid all required fees and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateraltaxes, and evidence is validly existing and in good standing under the laws of filing its place of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralincorporation;
(vf) A written a legal opinion of each the Company's Cayman Islands counsel covering, among other things, the capitalization of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP the Company and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPthe amendments to the constitutional documents of the Company, reasonably satisfactory to the Investor and its legal counsel for the Loan Partiesin form and substance, each dated as of on the Closing Date and opining as addressed to the matters set forth in Schedule 6.1.1Investor;
(vig) Evidence that adequate insurance required a legal opinion of the Company's Hong Kong counsel covering, among other things, the establishment of the HK Subsidiary, the Stage One Reorganization and the Stage One Restructuring Agreements, reasonably satisfactory to the Investor and its legal counsel in form and substance, dated on the Closing Date and addressed to the Investor;
(h) a legal opinion of the Company's PRC counsel covering, among other things, the establishment of the PRC Subsidiary, reasonably satisfactory to the Investor and its legal counsel in form and substance, dated on the Closing Date and addressed to the Investor;
(i) unaudited consolidated balance sheets and profit and loss statements of the Group Companies for the year ended December 31, 2005 and unaudited consolidated balance sheets and profit and loss statements of the Group Companies for the period ended June 30, 2006, which shall be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto satisfactory in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementInvestor; and
(xiij) Such other documentsBoard and members resolutions of the applicable Group Companies, instruments as appropriate, each certified by a duly authorized legal representative of the respective Group Company as true and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestcomplete.
Appears in 1 contract
Sources: Series a Preferred Shares Subscription Agreement (Ninetowns Internet Technology Group Co LTD)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(ia) A a certificate of each of the Loan Parties signed by an Authorized a Compliance Officer of each Borrowersuch Loan Party, dated the Closing Date stating that (vi) all representations and warranties of the Loan Parties set forth in this Agreement (including without limitation the representation as to solvency of the Loan Parties set forth in Section 5.18 and the representation as to litigation set forth in Section 5.9), are true and correct in all material respects as of the Closing Date, except to the extent such date (unless such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar importrelate to another specific date, in which case event they are true and correct in all respectsmaterial respects as of such other specific date), (wii) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xiii) no Potential Event of Default or Event of Default exists, and (yiv) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Parent delivered to the Administrative Agent;
(iib) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (ai) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (bii) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (ciii) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do businessand in which it maintains its chief executive office;
(ivc) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(vd) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local counsel, if applicable), dated as of the Closing Date and opining as in form and substance reasonably acceptable to the matters set forth in Schedule 6.1.1Administrative Agent;
(vie) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viif) A a duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing DateJune 30, 2018, signed by an Authorized a Compliance Officer of DSWParent;
(viiig) All a duly completed, executed Loan Request, including notice of election as to Interest Periods or Quoted Rate Periods (if applicable);
(h) evidence that the Borrower has made a minimum equity investment of in each Farm Credit Lender as required under Section 6.9;
(i) all material governmental and third-party consents required to effectuate the transactions contemplated hereby;
(ixj) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released[reserved];
(xk) Results of searches or a Lien search with respect to the Borrower and each other evidence reasonably Loan Party, in scope satisfactory to the Administrative Agent (in each case dated as of a date reasonably and with results showing no Liens other than Permitted Liens and otherwise satisfactory to the Administrative Agent;
(l) indicating the absence of Liens on the assets an executed direction to pay proceeds letter with respect to any proceeds of the Term Loan Partiesbeing disbursed to third parties;
(m) such financial statements, except for Permitted Liens budgets, forecasts and Liens for which termination statements and releases reasonably satisfactory other financial information as to the Loan Parties as the Administrative Agent are being tendered concurrently with such extension of credit or any other arrangements Lender may have reasonably satisfactory required prior to the Closing Date;
(n) at least five (5) Business Days prior to the Closing Date, all documentation and other information requested by (or on behalf of) the Administrative Agent for or any Lender in order to comply with requirements of applicable Anti-Terrorism Laws or Anti-Corruption Laws, including, without limitation, the delivery of such termination statements USA PATRIOT Act and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from a Beneficial Ownership Certification in relation to the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementBorrower; and
(xiio) Such such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: :
(a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;.
(ivi) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing including a pledge of all Collateral Documents as may be necessary to reflect valid of the equity in Hourglass Sands and perfected first priority Liens in the Collateral;High Point.
(vii) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;7.1.1.
(viiii) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;, and evidence that the Loan Parties have taken all actions required under the Flood Laws and/or requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral.
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiiiv) All material consents consents, approvals and licenses required to effectuate the transactions contemplated hereby;.
(v) All lessor consents allowing for, among other things, a Lien to be obtained upon any lease of the Borrower of the Real Property, from the lessors of such lease, as required by the Administrative Agent, in its sole discretion, to have such consents, which such consents shall be in form and substance acceptable to the Administrative Agent (the "Lessor Consents").
(vi) To permit the refinancing by the Lenders of the loans outstanding under the 2014 Credit Agreement, (1) the Borrower shall request Loans in an amount sufficient to refinance the loans under the 2014 Credit Agreement by delivering to the Administrative Agent an appropriately completed irrevocable Loan Request not later than 11:00 a.m., on the first Borrowing Date (which shall be the Closing Date) pursuant to which Loans (to which the Base Rate Option applies) are requested; and (2) contemporaneously with the execution and effectiveness of this Agreement and utilizing a portion of the proceeds of the Loans, the Borrower shall pay in full all amounts outstanding under the 2014 Credit Agreement, including all unpaid principal, interest, breakage fees and all other fees and charges thereunder in order to accomplish the amendment and restatement thereof as of the Closing Date. Each Lender that was a bank under the 2014 Credit Agreement, by execution of this Agreement, waives all notice of prepayment of loans and all notice of termination of the commitments under the 2014 Credit Agreement, and consents to such termination and prepayment. In the event that the Borrower submits a Loan Request hereunder, then the Borrower agrees to indemnify the Lenders for any and all liabilities, losses, or expenses arising therefrom in accordance with the standards set forth in Section 5.10 [Indemnity], regardless of whether this Agreement has become effective.
(vii) A Lien search in acceptable scope and with acceptable results.
(viii) Evidence that after giving effect to the transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity (or other security available for the issuance of permits, including without limitation, letters of credit) to conduct its operations as contemplated in accordance with the financial projections of the Borrower and its Subsidiaries provided to the Administrative Agent.
(ix) Evidence that all of Required Mining Permits with respect to the Existing Loan Agreement has been terminated, Parties are in full force and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;effect in accordance with their terms.
(x) Results Audited financial statements of searches Borrower for the fiscal year ended December 31, 2017, prepared in accordance with GAAP and consolidating schedules for the balance sheet, statement of income, retained earnings and cash flow of the Borrower certified (subject to normal year-end audit adjustments and without footnotes) by the Chief Executive Officer, President or other evidence reasonably Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP, all as more fully described in Section 8.3.2 [Annual Financial Statements].
(xi) The projected pro-forma financial projections (including balance sheets and statements of operations and cash flows) of the Borrower for each fiscal year from 2018 through 2021, which shall be satisfactory to the Administrative Agent (including all assumptions).
(xii) Completion of all necessary FEMA flood zone diligence requirements.
(xiii) Satisfactory completion and receipt of all third-party due diligence items, including, but not limited to the Energy Ventures Market Study, each in each case dated as of a date reasonably form and substance satisfactory to the Administrative Agent.
(xiv) indicating the absence An Authorized Officer of Liens on the assets of the each Loan PartiesParty, except for Permitted Liens acting in their capacities as such officers, shall have delivered a certificate in form and Liens for which termination statements and releases reasonably substance satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory as to the capital adequacy and solvency of each Loan Party after giving effect to the transactions contemplated hereby.
(xv) A review of the amount and nature of all tax, ERISA, employee retirement benefit, environmental and all other contingent liabilities to which the Loan Parties may be subject.
(xvi) The Administrative Agent for and each Lender shall have received, in form and substance acceptable to Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable "know your customer" and anti-money laundering rules and regulations, including the delivery of such termination statements and releases have been made;USA Patriot Act.
(xixvii) An executed Collateral Access Agreement or other lien waiver agreement from A duly completed Compliance Certificate dated as of the lessor, or other applicable Person for Closing Date pursuant to which Borrower certifies that it shall be in compliance on a Pro Forma Basis with the fulfillment center covenants contained in Section 8.2.15 [Minimum Debt Service Coverage Ratio] and Section 8.2.16 [Maximum Leverage Ratio] upon the main distribution center as required under closing and funding of the Security Agreement; andLoans hereunder.
(xiixviii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentAgent and, if applicable, its counsel:
(i) A a certificate of each the Borrower signed by a Compliance Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated as of the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respectscorrect, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default or Default exists, and (d) there has occurred no material adverse change either (y) no Material Adverse Change in the business, properties, assets, condition (financial or otherwise) or prospects of the Loan Parties and their respective Subsidiaries, taken as a whole or (z) in the facts and information regarding the Loan Parties and their respective Subsidiaries as represented to the Administrative Agent and the Lenders up to the Closing Date, taken as a whole, (e) each of the Loan Parties has occurred satisfied each of the closing conditions required to be satisfied by it hereunder, (f) attached thereto is a true, correct and complete copy of the ACS Cable Seller Note Documentation and the Existing Parent Note Documentation as in effect on the Closing Date; (g) the Existing Parent Note Documentation has not been modified since January 30May 7, 20102015; (h) after giving effect to the funding of the Term Loans, the initial credit extension under the First Lien Credit Facilities, and the payment of all fees and costs under Section 4.1(b), (x) the Liquidity Balance of the Loan Parties plus (y) all unrestricted cash on deposit in the Full Dominion Account on the Closing Date shall not be less than $40,000,000 (reduced by fees and expenses incurred by the Loan Parties in connection with the closing of the Credit Facilities and the other transactions contemplated on the Closing Date); and (i) attached thereto is a true, correct and complete copy of the First Lien Loan Documents;
(ii) A Simplified Borrowing Base Certificate prepared a certificate dated as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do business;
(iii) evidence that there is no action, suit, proceeding or investigation pending against, or threatened in writing against, any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, including the Licenses, in any court or before any arbitrator of any kind or before or by any other Governmental Authority (including the FCC and any applicable PUC) that would reasonably be expected to result in a Material Adverse Change;
(iv) This this Agreement, the Intercreditor Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and evidence that the First Lien Administrative Agent has received appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, Collateral and evidence all other original items required to be delivered pursuant to any of filing of all the Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDocuments;
(v) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local counsel required by the Administrative Agent), dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vi) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee, as applicable;
(vii) A a duly completed Compliance Certificate setting forth the calculation, calculated on a pro forma basis for the four fiscal quarters ending September 30, 2015, of the Net Total Leverage Ratio and the Senior Leverage Ratio using Indebtedness and Senior Indebtedness as of the last day Closing Date after giving effect to the funding of the fiscal quarter of DSW most recently ended prior to Term Loan and the Closing Date, initial credit extensions under the First Lien Credit Agreement and signed by an Authorized a Compliance Officer of DSWthe Borrower, and showing compliance with the financial covenants set forth in Sections 8.1 and 8.2;
(viii) All each of the SBIC Side Letter, SBA Form 480 and SBA Form 652 duly executed and completed by the Borrower;
(ix) a duly completed, executed Perfection and Diligence Certificate signed by a Compliance Officer of each of the Loan Parties;
(x) a duly completed, executed Solvency Certificate signed by a Compliance Officer of each of the Loan Parties;
(xi) evidence that all material consents governmental and third-party consents, subordinations or waivers, as applicable, required to effectuate the transactions contemplated herebyhereby have been obtained and are in full force and effect, including any required material permits and authorizations of all applicable Governmental Authorities, including the FCC and all applicable PUCs;
(ixxii) Evidence evidence that the Credit Agreement (the “Existing Loan Agreement Credit Facility”) dated October 21, 2010 among the Borrower, the Parent, the several banks and other financial institutions or entities from time to time parties thereto as lender and JPMorgan Chase Bank, as administrative agent, as amended, has been terminated, and all outstanding obligations thereunder have been paid in full and all Liens securing such obligations have been released;
(xxiii) Results of searches or a Lien search with respect to the Borrower and each other evidence reasonably Loan Party, in scope satisfactory to the Administrative Agent (in each case dated as of a date reasonably and with results showing no Liens other than Permitted Liens and otherwise satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xixiv) An true, correct and complete copies of all Material Agreements not already delivered pursuant to another clause of this Section 4.1;
(xv) if requested by the Administrative Agent, an executed Collateral Access Agreement or other lien waiver landlord agreement from the lessor, warehouse operator or other applicable Person for each leased location with Collateral valued in the fulfillment center aggregate in excess of $1,500,000, subordinating such Person’s Lien in goods stored at that location to the Prior Security Interest of the Administrative Agent and the main distribution center as required under the Security Agreement; and
(xii) Such containing such other documents, instruments terms and agreements in connection with such transactions provisions as the Administrative Agent or its counsel may shall reasonably request.require;
Appears in 1 contract
Sources: Second Lien Credit Agreement (Alaska Communications Systems Group Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of Universal and its Subsidiaries delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary Secretary, sole Member or Manager, as applicable, of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and office;
(iii) A good standing of certificate for each Loan Party in dated not more than sixty (60) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of such Loan Party’s jurisdiction of organization, and each state jurisdiction where organized the conduct of such Loan Party’s business activities or qualified to do businessthe ownership of its properties necessitates qualification;
(iv) A tax lien certificate for each Loan Party (other than North ▇▇▇▇▇▇▇) dated not more than sixty (60) days prior to the Closing Date, issued by the Department of Revenue or other appropriate office of such Loan Party’s jurisdiction of organization, as the case may be, and each jurisdiction where the conduct of such Loan Party’s business activities or the ownership of its properties necessitates qualification;
(v) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock and limited liability company powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Written opinions of (a) counsel for the Loan Parties (including Ohio local counsel), dated the Closing Date for the benefit of the Administrative Agent and each Lender, and (b) counsel for the Sellers in connection with the Acquisition, which opinion shall either be addressed to the Administrative Agent and the Lenders, or be delivered together with a letter permitting the Administrative Agent and the Lenders to rely on such opinion, in each case dated the Closing Date;
(vii) Evidence that adequate insurance insurance, including flood insurance, if applicable, required to be maintained under this Agreement is in full force and effect, with additional insured insured, mortgagee and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured insured, mortgagee and lender loss payee;
(viiviii) A duly completed Compliance Certificate certificate prepared as of the last day Closing Date in substantially the form of Exhibit 7.1.1(A) (the “Closing Compliance Certificate”), showing: (a) trailing twelve month Leverage Ratio of not greater than 2.50 to 1.00 for the period ended as of June 30, 2011 (provided that for purposes of this calculation, Senior Indebtedness shall be calculated on a pro forma basis as of such date after giving effect to the consummation of the fiscal quarter Acquisition (and the incurrence of DSW most recently ended prior Indebtedness under the Acquisition Documents) and the Loans and Letters of Credit to be made or issued on the Closing Date), signed by and (b) trailing twelve month Consolidated EBITDA for the period ended as of June 30, 2011 in an amount at least equal to Thirty Million and 00/100 Dollars ($30,000,000.00);
(ix) A certificate of an Authorized Officer of DSWeach Loan Party in the form of Exhibit 7.1.1(B) hereto as to the Solvency of each of the Loan Parties after giving effect to the transactions contemplated by this Agreement and the Acquisition Documents;
(viiix) Evidence that (a) no litigation, investigation or proceeding before or by any arbitrator or Official Body shall be continuing or threatened against any Loan Party or against the officers or directors of any Loan Party (1) in connection with this Agreement, the other Loan Documents, the Acquisition Documents, or any of the transactions contemplated thereby and which, in the reasonable opinion of the Administrative Agent, is deemed material or (2) which, in the reasonable opinion of the Administrative Agent, could reasonably be expected to result in a Material Adverse Change; and (b) no injunction, writ, restraining order or other order of any nature materially adverse to any Loan Party or the conduct of its business shall have been issued by any Official Body;
(xi) Fully executed copies of all Acquisition Documents;
(xii) Evidence, in form and substance satisfactory to the Administrative Agent, that the Acquisition has occurred subject only to the funding of Loans necessary to pay a portion of the purchase price;
(xiii) A Borrowing Base Certificate calculating Qualified Accounts and Qualified Inventory as of July 31, 2011;
(xiv) The Statements and the Projections;
(xv) All material consents required to effectuate the transactions contemplated herebyhereby and under the Acquisition Documents;
(ixxvi) Evidence that the Existing Loan Agreement has been terminatedParties have received all licenses and permits necessary to the operation of the Loan Parties’ businesses;
(a) UCC Lien Searches with respect to each Loan Party and each Seller (at the state level only) in their respective jurisdictions of formation, (b) judgment and tax lien searches with respect to each Loan Party and each Seller (at the state and county level) at each of their respective locations and in their respective jurisdictions of formation, and (c) intellectual property lien searches with respect to each Loan Party and each Seller, in each case with acceptable results;
(xviii) Evidence that all outstanding obligations thereunder Indebtedness not permitted under Section 8.2.1 [Indebtedness] shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(xix) indicating Executed Waivers required by the absence Administrative Agent with respect to the inventory and/or equipment of Liens on each Loan Party;
(xx) A title insurance policy or policies or binder or binders in favor of the assets Administrative Agent (for its benefit and for the benefit of the Lenders), in customary ALTA current mortgagee’s form, insuring the Mortgage as a valid first priority Lien upon the Mortgaged Premises;
(xxi) A.L.T.
A. Survey with respect to the Mortgaged Premises with the signature and seal of a registered engineer or surveyor certified to the Administrative Agent and the title company;
(xxii) Phase I Environmental Assessment and, if required by the Administrative Agent, Phase II Environmental Assessment of the Mortgaged Premises;
(xxiii) Legal Description of the Mortgaged Premises;
(xxiv) Occupancy, zoning and all other certificates, permits and licenses required with respect to the operation of the Mortgaged Premises;
(xxv) Flood Certificates with respect to all of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit ’ owned or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeleased real property;
(xixxvi) An executed Collateral Access Agreement or Evidence that the Loan Parties are in compliance with all pertinent Federal, State and local regulations including, but not limited to, those with respect to EPA, OSHA and ERISA, as applicable;
(xxvii) Copies of all material contracts of the Borrowers including, but not limited to, (a) all indentures and related documents, if any, (b) union contracts, (c) employment contracts of key management, (d) loan documents, (e) leases of real property, and (f) warehouse agreements;
(xxviii) All documentation and other lien waiver agreement from information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementUSA Patriot Act; and
(xiixxix) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Universal Stainless & Alloy Products Inc)
Deliveries. On Subject to the conditions set forth in this Agreement, on the Closing Date, :
(a) The ASSAC Parties will deliver to the Administrative Agent shall have received each Stillwater Parties:
(i) evidence of payment of the following Consideration, consisting of the ASSAC Series A Preferred Shares, as evidenced by a copy of the Register of Members of ASSAC recording the issuance of such ASSAC Series A Preferred Shares issued to the Funds or the Shareholders of the Funds;
(ii) a certificate of the ASSAC Parties dated the Closing Date stating that the conditions set forth in SECTION 7.1 have been satisfied;
(iii) the text of the resolutions adopted by the board of directors of ASSAC authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements, certified by an appropriate officer of ASSAC;
(iv) each Ancillary Agreement to which ASSAC is a party, duly executed by ASSAC;
(v) all Required Consents, duly executed by all appropriate parties; and
(vi) all Asset Transfer Instruments under and pursuant to Section 2.1(b) of this Agreement and all Liability Assumption Instruments under and pursuant to Section 2.3(b); and
(vii) evidence of filing of the ASSAC Series A Preferred Certificate of Designations and Restated ASSAC Articles with the Registrar of Companies in the Cayman Islands;
(viii) such other certificates, documents and instruments that the Stillwater Parties reasonably request for the purpose of (A) evidencing the accuracy of the ASSAC Parties’ representations and warranties, (B) evidencing the performance and compliance by the ASSAC Parties with the agreements contained in this Agreement, (C) evidencing the satisfaction of any condition referred to in SECTION 7.1 or (D) otherwise facilitating the consummation of the transactions contemplated by this Agreement. All actions to be taken by the ASSAC Parties in connection with consummation of the transactions contemplated by this Agreement and all certificates, opinions, instruments and other documents required to effect the transactions contemplated by this Agreement will be in form and substance reasonably satisfactory to the Administrative AgentStillwater Parties and their counsel.
(b) The Stillwater Parties will deliver to ASSAC:
(i) A a certificate of each of the Loan Stillwater Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties conditions set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010SECTION 6.2 have been satisfied;
(ii) A Simplified Borrowing Base Certificate prepared as the text of the Closing Date resolutions adopted by the board of directors of each of the Stillwater Parties authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements, certified by an appropriate officer of Stillwater;
(iii) each Ancillary Agreement to which any Stillwater Party is a party, duly executed by such Stillwater Party;
(iv) all Required Consents, duly executed by all appropriate parties;
(v) all Asset Transfer Instruments under and pursuant to Section 2.1(b) of this Agreement and all Liability Assumption Instruments under and pursuant to Section 2.3(b); and
(vi) such other certificates, documents and instruments that the ASSAC Parties reasonably request for the purpose of (1) evidencing the accuracy of the Stillwater Parties’ representations and warranties, (2) evidencing the performance and compliance by the Stillwater Parties with the agreements contained in substantially this Agreement, (3) evidencing the form satisfaction of Exhibit 7.3.4.1, showing any condition referred to in SECTION 6.2 or (4) otherwise facilitating the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of this Agreement. All actions to be taken by each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party Stillwater Parties in connection with consummation of the transactions contemplated by this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documentscertificates, opinions, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance other documents required to be maintained under effect the transactions contemplated by this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto will be in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens ASSAC and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestcounsel.
Appears in 1 contract
Sources: Asset Purchase Agreement (Asia Special Situation Acquisition Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Event of Default or Event of Potential Default exists, and (yd) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW Borrower most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWBorrower;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(viii) A lien search in acceptable scope and with acceptable results;
(ix) Evidence that the Existing Loan Agreement has been terminatedNo Material Adverse Change since April 26, and all outstanding obligations thereunder 2013 shall have been paid and all Liens securing such obligations have been releasedoccurred;
(x) Results of searches or other evidence reasonably satisfactory to No material litigation shall exist except as disclosed in the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madePublic Filing;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from The Administrative Agent shall be satisfied with its review of (i) ERISA and labor matters affecting the lessor, or other applicable Person for Loan Parties and their Subsidiaries and (ii) the fulfillment center status of regulatory approvals and licenses of the main distribution center as required under the Security AgreementLoan Parties and their Subsidiaries; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (v) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;the date of the last audited financial statements of the Borrower delivered to the Administrative Agent and (z) the Rating of the Borrower by each Rating Agency (provided that no confirmation by the Rating Agencies shall be required).
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each the state where organized or qualified to do business;
organized; (iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
Officer; (viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower (which may be in- house counsel with respect to Indiana law), each dated as of the Closing Date and opining as Date, addressed to the matters set forth in Schedule 6.1.1;
Administrative Agent and each Lender; (viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
; (vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material governmental consents required to effectuate the transactions contemplated hereby;
, including without limitation, the FERC Order and the IURC Order (ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement certification from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementBorrower there are no such consents); and
(xiivii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each of the Loan Parties signed by an Authorized a Compliance Officer of each Borrowersuch Loan Party, dated the Closing Date stating that (vi) all representations and warranties of the Loan Parties set forth in this Agreement (including without limitation the representation as to solvency of the Loan Parties set forth in Section 5.18 and the representation as to litigation set forth in Section 5.9), are true and correct in all material respects as of the Closing Date, except to the extent such date (unless such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar importrelate to another specific date, in which case event they are true and correct in all respectsmaterial respects as of such other specific date), (wii) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xiii) no Potential Event of Default or Event of Default exists, and (yiv) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Parent delivered to the Administrative Agent; provided that the impacts of COVID-19 on the business, 2010assets, operations, financial condition or prospects of such Loan Party that (x) have been disclosed in writing to the Lead Arranger and the Lenders prior to the Closing Date; (y) were discussed on the conference call between the Lead Arranger, the Lenders and the Borrower on May 8, 2020; or (z) have been otherwise publicly disclosed in filings with the SEC prior to the Closing Date, will be disregarded, in each case to the extent so disclosed or discussed;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (ai) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (bii) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (ciii) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office (if so filed or required to be so filed) together with certificates from the appropriate state officials as to the continued existence and good standing or existence (as applicable) of each Loan Party in each state where organized or qualified to do businessand in which it maintains its chief executive office;
(iviii) This this Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A customary written opinion opinions of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each duly executed (including any local counsel, if applicable), dated as of the Closing Date and opining as in form and substance reasonably acceptable to the matters set forth in Schedule 6.1.1Administrative Agent;
(viv) Evidence evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vi) [reserved];
(vii) A a duly completed Compliance Certificate completed, executed Loan Request, including notice of election as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWInterest Periods (if applicable);
(viii) All evidence that the Borrower has made a minimum equity investment in each Farm Credit Lender as required under Section 6.9;
(ix) all material governmental and third-party consents required to effectuate the transactions contemplated hereby;
(ixx) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released[reserved];
(xxi) Results of searches or a Lien search with respect to the Borrower and each other evidence reasonably Loan Party, in scope satisfactory to the Administrative Agent (in each case dated as of a date reasonably and with results showing no Liens other than Permitted Liens and otherwise satisfactory to the Administrative Agent;
(xii) indicating the absence of Liens on the assets an executed direction to pay proceeds letter with respect to any proceeds of the Revolving Loans being disbursed to third parties;
(xiii) such financial statements, budgets, forecasts and other financial information as to the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to Parties as the Administrative Agent are being tendered concurrently with such extension of credit or any other arrangements Lender may have reasonably satisfactory required prior to the Closing Date;
(xiv) at least five (5) Business Days prior to the Closing Date, all documentation and other information requested by (or on behalf of) the Administrative Agent for or any Lender in order to comply with requirements of applicable Anti-Terrorism Laws or Anti-Corruption Laws, including, without limitation, the delivery of such termination statements USA PATRIOT Act and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from a Beneficial Ownership Certification in relation to the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementBorrower; and
(xiixv) Such such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Seaboard Corp /De/)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the its representations, warranties, covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, no litigation which is material adverse to the Borrower and (y) its Subsidiaries, taken as a whole, exists and no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (a) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto effect in form and substance satisfactory to the Administrative Agent and its counsel naming counsel;
(vi) The Borrower shall have terminated the Administrative Agent commitments, and paid in full all Indebtedness, interest, fees and other amounts outstanding, under the $130,000,000 Credit Agreement dated as additional insured of March 8, 2005, among the Borrower, the lenders parties thereto and lender loss payeeCitibank, N.A., as agent for such lenders, and each of the lenders that is a party to such Credit Agreement hereby waives, upon execution of this Agreement, the three Business Days notice required by Section 2.04 of such Credit Agreement relating to the termination of commitments thereunder;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWLien search in acceptable scope and with acceptable results;
(viii) All material consents consents, approvals and licenses required to effectuate the transactions contemplated herebyhereby have been obtained;
(ix) Evidence that The projected financial projections (including balance sheets, statements of operations and cash flows) of the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedBorrower for the 2009 through 2012 fiscal years;
(x) Results of searches or other evidence reasonably satisfactory Evidence that after giving effect to the Administrative Agent (transactions contemplated by the Loan Documents, the Borrower has a sufficient mine bonding capacity to conduct its operations as projected in each case dated as accordance with the financial projections of a date reasonably satisfactory the Borrower and its Subsidiaries provided to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;; and
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Nacco Industries Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wx) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xy) no Potential Event of Default or Event of Potential Default exists, and (yz) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralstatements;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.17.1.1;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(viivi) A duly completed Compliance Borrowing Base Certificate prepared as of the last day Closing Date in substantially the form of Exhibit 8.3.4, showing total undrawn Revolving Credit availability, after giving effect to the Loans and Letters of Credit to be made on the Closing Date (including any Existing Letters of Credit then outstanding), the subtraction of any trade payables over thirty (30) days past due not otherwise on formal extended terms, consummation of the fiscal quarter transactions contemplated hereby and other availability reserves, of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWat least $50,000,000;
(viiivii) All material consents required to effectuate the transactions contemplated hereby;
(ixviii) Evidence that the Existing Loan Agreement has been terminated, A Lien search in acceptable scope and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been releasedwith acceptable results;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xiix) An executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location as required under the Security Agreement;
(x) Acceptable Financial Projections;
(xi) An environmental questionnaire;
(xii) Review of all significant contracts (including Labor Contracts), the terms, conditions and documentation of other Indebtedness of the Loan Parties, transactions with affiliates and the relationship of the Loan Parties with their subsidiaries, litigation, Evidence that Loan Parties are materially in compliance with all pertinent federal, state and local Laws including Environmental Laws, occupational safety and ERISA; and
(xiixiii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Country Fair Inc)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Borrower signed by an Authorized Officer of each BorrowerOfficer, dated as of the Closing Date stating that (v) all representations and warranties of the Loan Parties Borrower set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are Borrower is in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default or Potential Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010the date of the last audited financial statements of the Borrower delivered to the Administrative Agent and (z) the Rating of the Borrower by each Rating Agency (provided that no confirmation by the Rating Agencies shall be required);
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan PartiesBorrower, certifying as appropriate as to: (aA) all action taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (bB) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party the Borrower in each the state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralOfficer;
(viv) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan PartiesBorrower (which may be in-house counsel with respect to Indiana law), each dated as of the Closing Date and opining as Date, addressed to the matters set forth in Schedule 6.1.1Administrative Agent and each Lender;
(viv) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viiivi) All material governmental consents required to effectuate the transactions contemplated hereby, including without limitation, the FERC Order and the IURC Order (or certification from the Borrower there are no such consents);
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiivii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request.
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (Ipalco Enterprises, Inc.)
Deliveries. (a) On the Closing Date, the Administrative Agent Company shall have received deliver or cause to be delivered to each of Värde Party the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) A certificate of each evidence of the Loan Parties signed by an Authorized Officer number of each Borrowershares of the Exchanged Shares issued to such Värde Party having been issued in book-entry form to such Värde Party;
(ii) evidence that the A&R Series C Certificate of Designation has been filed with, dated and accepted by, the Closing Date stating Secretary of State of the State of Nevada;
(iii) evidence that the A&R Series D Certificate of Designation has been filed with, and accepted by, the Secretary of State of the State of Nevada;
(iv) evidence that the Series E Certificate of Designation has been filed with, and accepted by, the Secretary of State of the State of Nevada;
(v) all representations evidence that the Series F Certificate of Designation has been filed with, and warranties accepted by, the Secretary of State of the Loan Parties set forth in this State of Nevada;
(vi) the Registration Rights Agreement are true duly executed by the Company;
(vii) the Payoff Letter duly executed by the Company and correct in all material respects the other parties thereto (other than the Värde Parties);
(viii) evidence that a number of Underlying Shares at least equal to the Required Minimum has been reserved by the Company and approved, subject to official notice of issuance, for listing on the NYSE American;
(ix) evidence that the Exchanged Common Shares have been approved, subject to official notice of issuance, for listing on the NYSE American;
(x) to the extent not previously delivered to the Värde Parties, the RBL Amendment duly executed by the Company and the other parties thereto;
(xi) a certificate of the Company’s Secretary or another authorized officer of the Company, dated as of the Closing Date, except certifying (A) the Articles of Incorporation and bylaws, as then in effect and attached thereto, (B) the resolutions adopted by the Board of Directors authorizing the transactions contemplated hereby and (C) as to the extent such representations signatures and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each authority of the covenants Persons signing the Transaction Documents and conditions hereunder, (x) no Potential Default or Event related documents on behalf of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010the Company;
(iixii) A Simplified Borrowing Base Certificate prepared a certificate of the Company signed on behalf of the Company by an executive officer and dated as of the Closing Date Date, certifying that the conditions in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby Section 2.4(b) (including repayment of Indebtedness under the Existing Loan Agreement other than clause (including in respect of any outstanding letters of credit issued thereunderiv) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000thereof) have been satisfied;
(iiixiii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates opinion from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for in substantially the Loan Partiesform attached hereto as Exhibit G, each which shall be addressed to the Värde Parties and dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vixiv) Evidence that adequate insurance required to an opinion of Nevada counsel, in substantially the form attached hereto as Exhibit H, which shall be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory addressed to the Administrative Agent Värde Parties and its counsel naming dated as of the Administrative Agent as additional insured and lender loss payeeClosing Date;
(viixv) A duly completed Compliance Certificate as payment of the last day Värde Parties’ Transaction Expense Amount, payable by wire transfer of immediately available funds to the fiscal quarter of DSW most recently ended accounts designated by the Värde Parties prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xiixvi) Such evidence that the Payoff Amount (as defined in the Payoff Letter) has been received by the applicable parties to which such amount is owed.
(b) On the Closing Date, each Värde Party shall deliver or cause to be delivered to the Company the following:
(i) the Registration Rights Agreement duly executed by such Värde Parties;
(ii) the Payoff Letter duly acknowledged by such Värde Parties and the other documentslenders party thereto;
(iii) a certificate of such Värde Party signed on behalf of such Värde Party by a duly authorized Person and dated as of the Closing Date, instruments and agreements certifying that the conditions in connection with Section 2.4(c) (other than clause (iii) thereof) have been satisfied; and
(iv) a cross-receipt, duly executed by such transactions as Värde Party, acknowledging such Värde Party’s receipt of the Administrative Agent or its counsel may reasonably requestnumber of Exchanged Shares set forth opposite such Värde Party’s name on Schedule I hereto.
Appears in 1 contract
Deliveries. On At the Closing DateClosing:
(a) Seller will deliver, or cause to be delivered, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentBuyer:
(i) A certificate of each of certificates evidencing the Loan Parties signed certificated Shares, if such Shares are certificated, accompanied by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified Stock Power duly executed by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010Seller;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date officer’s certificate described in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000Section 6.7;
(iii) A certificate dated a Form W-9 properly completed by Seller (or, if Seller is a disregarded entity, the Closing Date and signed by Person treated as the Secretary or an Assistant Secretary owner of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessSeller for federal Income Tax purposes);
(iv) This Agreement the resignations of all directors and each officers of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralSale Entities that are not Business Employees;
(v) A written opinion a certificate of good standing or the equivalent of recent date for each of the Sale Entities from their respective jurisdictions of organization;
(vi) all minute books, membership interest transfer ledgers (if any), and seal (if any) of each Sale Entity in the possession of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP any of the Sale Entities, Seller, or any of their respective Affiliates;
(vii) two copies of a USB containing all documents posted in the virtual data room hosted by Intralinks under “Project Genoa” at any time up to, and including, the Closing Date, and a true, complete and correct index thereof;
(viii) original copies, or if unavailable copies, of each guarantee, bond, letter of credit and other financial assurance in favor of the Sale Entities that is outstanding as of the Closing;
(ix) the Transition Services Agreement, duly executed by Seller; and
(x) the Trademark Assignment, duly executed by ▇▇▇▇▇▇.
(b) Buyer will deliver, or cause to be delivered, the following to Seller:
(i) the Base Purchase Price required by Section 2.1(b) of this Agreement, plus the Estimated Closing Payment Amount and, if applicable, the Support Obligation Payment;
(ii) the officer’s certificate described in Section 7.5;
(iii) reasonable evidence of the replacement, termination and release or provision of back-to-back guarantees for all Support Obligations, in each case, in accordance with Section 5.8(c); and
(iv) the Transition Services Agreement, duly executed by ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. On At the Closing DateFacility Increase Closing, the Administrative Agent shall have received Company will deliver to each Investor (i) duly executed Facility Increase Warrants in accordance with Section 2.2, (ii) a written opinion of King & Spalding, LLP, counsel to the following Company, in form and substance reasonably satisfactory acceptable to the Administrative Agent:
Investors, (iiii) A a certificate of each the Secretary or an Assistant Secretary of the Loan Parties signed by an Authorized Officer of each BorrowerCompany, dated the Initial Closing Date stating and certifying: (1) that attached thereto is a true and complete copy of the Bylaws as in effect on the date of such certification; (2) that attached thereto is a true and complete copy of the Certificate of Incorporation as in effect on the date of such certification; (3) that attached thereto is a certificate of the Secretary of State dated as of a recent date as to the due incorporation and good standing of the Company and listing all documents of the Company on file with the Secretary of State; and (4) that attached thereto is a true and complete copy of resolutions adopted by the Board authorizing the execution, delivery and performance of the Transaction Agreements, the issuance, sale, and delivery of the Facility Increase Warrants, and that all such resolutions are still in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement, and (iv) a certificate of a duly authorized officer, dated the Facility Increase Closing Date, to the effect that (v1) all the representations and warranties of the Loan Parties set forth Company contained in this Agreement Article III are true and correct in all material respects at and as of the Facility Increase Closing DateDate as if made at and as of the Facility Increase Closing Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date); provided that, except if a representation or warranty is qualified as to the extent such representations and warranties are modified by “materiality” materiality or “Material Adverse Change” Effect, for purposes of this clause (iv), such representation or words of similar import, in which case they are warranty shall be true and correct in all respects), and (w2) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xin Section 6.2(c) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestsatisfied.
Appears in 1 contract
Sources: Warrant Purchase Agreement (F45 Training Holdings Inc.)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A With respect to each Loan Party, and subject to the Due Authorization Limitation Provision, IOS and each IOS Guarantor, a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default or Potential Default exists, and (yd) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent, 2010and (e) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Subsidiaries which could reasonably be expected to result in a Material Adverse Change;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1With respect to each Loan Party, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect subject to the Loans to be made on the Closing Date Due Authorization Limitation Provision, IOS and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date)each IOS Guarantor, of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state or foreign jurisdiction official where such documents are filed in a the appropriate state or foreign jurisdiction office together with certificates from the appropriate state or foreign jurisdiction officials as to the continued existence and good standing (or foreign jurisdiction equivalent, if any) of each Loan Party in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Written opinions of counsel for each Loan Party Party, IOS and all appropriate financing statements each IOS Guarantor, dated the Closing Date, each in form and appropriate stock powers substance acceptable to the Administrative Agent and certificates the Lenders; provided that the delivery of the opinions to be delivered with respect to IOS and other documents, instruments and agreements evidencing each IOS Guarantor shall be subject to the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralDue Authorization Limitation Provision;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, ;
(vi) A Lien search in acceptable scope and with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeacceptable results;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated herebyhereby and by the Acquisition Documents;
(viii) The following shall be accurate in all material respects (or, if qualified by materiality, in all respects) with respect to IOS and each IOS Guarantor (a) the Specified Merger Agreement Representations and (b) the Specified Representations;
(ix) Evidence that Projected consolidated financial statements of the Existing Loan Agreement has been terminatedCompany and its Subsidiaries consisting of consolidated balance sheets, statements of operations and cash flows, from the fiscal year ending December 31, 2015 through the fiscal year ending December 31, 2019, all outstanding obligations thereunder have been paid of which shall be in form and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date substance reasonably satisfactory to the Administrative Agent;
(x) indicating the absence of Liens on the assets A duly completed Compliance Certificate as of the Loan PartiesClosing Date, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to signed by a Senior Officer of the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeCompany;
(xi) An executed Collateral Access Evidence that the Existing Credit Agreement or other lien waiver agreement from shall have been amended and restated and all outstanding obligations thereunder shall be deemed to be Obligations hereunder, and such Obligations shall be allocated to each Lender on the lessor, or other applicable Person for the fulfillment center Closing Date in accordance with such Lender’s Ratable Share; and the main distribution center as required Administrative Agent shall have paid all outstanding amounts owed to any lender under the Security Existing Credit Agreement who is not a Lender under this Agreement;
(xii) Satisfactory completion of third-party due diligence, including all environmental due diligence, initiated by the Borrowers as it relates to the transactions contemplated hereby;
(xiii) Receipt of a certified copy of the duly executed Merger Agreement and any related acquisition or merger documents (together with the Merger Agreement, the “Acquisition Documents”) reasonably acceptable to the Administrative Agent and its counsel (including all amendments, supplements, schedules and exhibits thereto), and such Acquisition Documents shall be in full force and effect; and the IOS Transaction shall be consummated pursuant to such Acquisition Documents substantially concurrently with the making of the initial Loans hereunder without giving effect to any amendments, consents or waivers by the Loan Parties;
(xiv) Receipt of IOS’s Quality of Earnings report, in form and substance satisfactory to the Administrative Agent;
(xv) Satisfactory review of the amount and nature of all tax, ERISA, employee retirement benefit and all other contingent liabilities to which the Loan Parties may be subject; and
(xiixvi) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its said counsel may reasonably request, including all information required under applicable “Know-Your-Customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act.
Appears in 1 contract
Sources: Credit Agreement (Foster L B Co)
Deliveries. On At the Closing DateClosing:
(a) Seller will deliver, or cause to be delivered, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentBuyer:
(i) A certificate the Assignment of each of the Loan Parties signed Membership Interests duly executed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ;
(ii) the officer’s certificate described in Section 6.7;
(iii) a Form W-9 properly completed by Seller (or, if Seller is a disregarded entity, the Person treated as the owner of Seller for federal Income Tax purposes);
(iv) the resignations of all directors and officers of the Sale Entities that are not Business Employees;
(v) a certificate of good standing or the equivalent of recent date for each of the Sale Entities from their respective jurisdictions of organization;
(vi) all minute books, membership interest transfer ledgers (if any), and seal (if any) of each Sale Entity in the possession of any of the Sale Entities, Seller, or any of their respective Affiliates;
(vii) two copies of a USB containing all documents posted in the virtual data room hosted by Intralinks under “Project Genoa” at any time up to, and including, the Closing Date, and a true, complete and correct index thereof;
(viii) original copies, or if unavailable copies, of each guarantee, bond, letter of credit and other financial assurance in favor of the Sale Entities that is outstanding as of the Closing;
(ix) the Transition Services Agreement, duly executed by Seller; and
(x) the Trademark Assignment, duly executed by ▇▇▇▇▇▇▇▇▇ LLP.
(b) Buyer will deliver, counsel for or cause to be delivered, the Loan Partiesfollowing to Seller:
(i) the Base Purchase Price required by Section 2.1(b) of this Agreement, each dated as of plus the Estimated Closing Date and opining as to Payment Amount and, if applicable, the matters set forth in Schedule 6.1.1Support Obligation Payment;
(viii) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effectthe Assignment of Membership Interests, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeduly executed by ▇▇▇▇▇;
(viiiii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSWofficer’s certificate described in Section 7.5;
(viiiiv) All material consents required to effectuate reasonable evidence of the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminatedreplacement, termination and release or provision of back-to-back guarantees for all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (Support Obligations, in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Partiescase, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently in accordance with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementSection 5.8(c); and
(xiiv) Such other documentsthe Transition Services Agreement, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestduly executed by ▇▇▇▇▇.
Appears in 1 contract
Deliveries. On the Closing Date, the The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A a certificate of each the Borrower signed by a Financial Officer of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Delayed Draw Date stating that (va) all representations and warranties of the Loan Parties Borrower set forth in Article V of this Agreement are true and correct in all material respects as of the Closing Daterespects, except to the extent that such representations and warranties that are modified qualified in this Agreement by “materiality” reference to materiality or “a Material Adverse Change” or words of similar import, in which case they are Effect shall be true and correct in all respects, (w) the Loan Parties are in compliance with each as of the covenants and conditions hereunderDelayed Draw Date (or, if such representation or warranty makes reference to an earlier date, as of such earlier date), (xb) no Potential Default or Event of Default or Default exists, and (yc) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect all material consents of any outstanding letters of credit issued thereunder) Governmental Authority or third party necessary for the Acquisition shall have been obtained and payment of fees be in full force and expenses owing effect without condition or provision that would reasonably be expected to have a “Buyer Adverse Condition” (as defined in the Acquisition Agreement as on effect on the Closing Date), (d) no event or condition has occurred since December 16, 2013 that individually or in the aggregate has had, or is reasonably likely to have, a “Seller Material Adverse Effect” (as defined in the Acquisition Agreement in effect on the Closing Date), and (e) attached thereto is a true, correct and complete copy of at least $300,000,000the Acquisition Agreement, together with all schedules, exhibits, appendices, attachments and amendments thereto, as in effect on the Delayed Draw Date;
(ii) a duly executed Compliance Certificate dated the Delayed Draw Date and evidencing a Total Leverage Ratio of no greater than 3.95:1.00 on a proforma basis after giving effect to the Term Loans and the Acquisition;
(iii) A a certificate dated the Closing Delayed Draw Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, Borrower certifying as appropriate as to: that (a) all action information certified to in the certificate delivered to the Administrative Agent and the Lenders on the Closing Date pursuant to Section 4.1(b)(ii) remains true and correct in all respects as of the Delayed Draw Date, or providing updates to any changes therein, (b) each of the Organizational Documents attached thereto has not been modified since the Closing Date and remains in full force and effect or providing updates to any changes therein and (c) all corporate actions taken by each Loan Party the Borrower in connection with this Agreement and the other Loan Documents; (b) Documents remain in full force and effect and authorize the names transactions contemplated as of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDelayed Draw Date;
(iv) This Agreement and each a duly completed, executed Loan Request for the Term Loans requested to be made on the Delayed Draw Date, including notice of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents election as may be necessary to reflect valid and perfected first priority Liens in the CollateralInterest Periods (if applicable);
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPa duly completed, counsel for the Loan Parties, each dated as executed Solvency Certificate signed by a Financial Officer of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Borrower;
(vi) Evidence evidence, in form and substance reasonably satisfactory to the Administrative Agent, that adequate insurance (A) the Acquisition has been or is being consummated on terms and conditions consistent with the Acquisition Agreement in the form attached to the certificate delivered to the Administrative Agent pursuant to Section 4.2(b)(i), in all material respects, substantially concurrently with the making of the Term Loans, other than any amendments, consents or waivers thereto that are not materially adverse to the Lenders (absent the prior consent of the Lenders, which consent shall not be unreasonably withheld or delayed; provided that an increase or reduction in the purchase price by 10% or less shall not be deemed materially adverse to the Lenders), and (B) all material governmental and third-party consents, subordinations or waivers, as applicable, required to be maintained under this Agreement is consummate the Acquisition have been obtained and are in full force and effect, with additional insured including any required material permits, authorizations or consents, of all applicable Governmental Authorities, including the FCC and lender loss payable endorsements attached thereto all applicable PUCs, in form and substance satisfactory each case without condition or provision that would reasonably be expected to have a “Buyer Adverse Condition” (as defined) in the Administrative Agent and its counsel naming Acquisition Agreement in effect on the Administrative Agent as additional insured and lender loss payeeClosing Date;
(vii) A duly completed Compliance Certificate as an executed letter from the Borrower with respect to any proceeds of the last day Term Loans being disbursed to third parties authorizing the Administrative Agent to distribute such proceeds on behalf of the fiscal quarter of DSW most recently ended prior to Borrower in accordance with the Closing Date, signed by an Authorized Officer of DSW;instructions set forth in such letter; and
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing any Term Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestNote requested by any Lender.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A With respect to each Loan Party, a certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (va) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wb) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (xc) no Potential Default or Event of Default or Potential Default exists, and (yd) no Material Adverse Change has occurred since January 30the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent, 2010and (e) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Subsidiaries which could reasonably be expected to result in a Material Adverse Change;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1With respect to each Loan Party, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A a certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state or foreign jurisdiction official where such documents are filed in a the appropriate state or foreign jurisdiction office together with certificates from the appropriate state or foreign jurisdiction officials as to the continued existence and good standing (or foreign jurisdiction equivalent, if any) of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate and, to the extent not previously delivered to the Administrative Agent, stock powers and or other certificates and other documents, instruments and agreements evidencing the pledged CollateralCollateral and appropriate transfer powers;
(iv) Written opinions of counsel for each Loan Party, dated the Closing Date, each in form and evidence of filing of all Collateral Documents as may be necessary substance acceptable to reflect valid the Administrative Agent and perfected first priority Liens in the CollateralLenders;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, ;
(vi) Lien searches for each Loan Party in acceptable scope and with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeacceptable results;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(viii) Pro forma projections (including a pro forma closing balance sheet, pro forma statements of operations and cash flow) for the years through 2023, including assumptions used in preparing the forecast financial statements, satisfactory to the Administrative Agent;
(ix) Evidence that A duly completed Compliance Certificate as of the Closing Date, signed by a Senior Officer of the Company;
(x) The Existing Loan Credit Agreement has shall have been terminated, amended and restated at closing and all outstanding obligations thereunder have been paid shall be deemed to be Obligations hereunder, and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory Obligations shall be allocated to each Lender on the Closing Date in accordance with such Lender's Ratable Share; and the Administrative Agent (in each case dated as of shall have paid all outstanding amounts owed to any lender under the Existing Credit Agreement who is not a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeLender under this Agreement;
(xi) An Satisfactory completion of third-party due diligence, including all environmental due diligence, initiated by the Borrowers as it relates to the transactions contemplated hereby;
(xii) The Administrative Agent and each Lender shall have received, in form and substance acceptable to Administrative Agent and each Lender an executed Collateral Access Agreement or Certificate of Beneficial Ownership for each Foreign Borrower and such other lien waiver agreement from documentation and other information requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the lessorUSA Patriot Act;
(xiii) Satisfactory review of the amount and nature of all tax, or ERISA, Canadian Pension Plans, Canadian Benefit Plans, employee retirement benefit and all other applicable Person for contingent liabilities to which the fulfillment center and the main distribution center as required under the Security AgreementLoan Parties may be subject; and
(xiixiv) Such other documents, instruments Receipt of such information and agreements in connection with such transactions documentation as may reasonably be requested by the Administrative Agent or its counsel may reasonably request.any Lender from time to time for purposes of compliance by the Administrative Agent and such Lender with applicable laws (including without limitation the USA Patriot Act or other “know your customer” and anti-money laundering rules and regulations and Anti-Terrorism Laws), and any policy or procedure implemented by the Administrative Agent or such Bank to comply therewith
Appears in 1 contract
Sources: Credit Agreement (Foster L B Co)
Deliveries. On the Closing Date, the Administrative Agent Lender shall have received each of the following in form and substance reasonably satisfactory to the Administrative AgentLender:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of the Closing Date, (except to the extent such for those representations and warranties that are modified qualified by “reference to materiality” or “Material Adverse Change” or words of similar import, in which case they are shall be true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder), (x) no Potential Event of Default or Event of Potential Default exists, and (y) no Material Adverse Change has occurred since January 30March 3, 20102013;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with to duly authorize the execution, delivery and performance of this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with (or certified as not having changed since the versions most recently delivered to Lender); and (d) certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessorganized;
(iviii) This Agreement and each of the other Loan Documents (to the extent being executed on the date hereof) duly signed by an Authorized Officer of and each Loan Party and all appropriate financing statements and other party thereto;
(iv) All appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary Subsidiary Equity Interests (to reflect valid and perfected first priority Liens in the Collateralextent not already delivered to Lender);
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Date;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is A Lien search in full force acceptable scope and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeacceptable results;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to Loan Request for any Loans being requested on the Closing Date, signed by an Authorized Officer of DSW;; and
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent Lender or its said counsel may have reasonably requestrequested.
Appears in 1 contract
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties Company signed by an Authorized Officer of each Borrowerthe Company, dated the Closing Date stating that (vA) all representations and warranties of the Loan Parties Borrowers set forth in this Agreement are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (wB) the Loan Parties Borrowers are in compliance with each of the covenants and conditions hereunder, (xC) no Potential Default or Event of Default exists, or Potential Default exists and (yD) there is no litigation or proceedings of which it is aware before any courts, arbitrators or governmental or regulatory agencies affecting the Company or any of its Consolidated Subsidiaries which could reasonably be expected to have a Material Adverse Change has occurred since January 30, 2010Effect;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary or Director of each of the Loan PartiesBorrowers, certifying as appropriate as to: (a) all action taken by each Loan Party Borrower in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing (or foreign jurisdictional equivalent in each jurisdiction where such certification is required) of each Loan Party Borrower in each state where organized or qualified to do business;
(iviii) This Agreement and each of the other Loan Documents signed by an Authorized Officer Officer;
(iv) Opinions of counsel for each Loan Party of the Borrowers, dated the Closing Date, each in form and all appropriate financing statements substance acceptable to the Administrative Agent and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the CollateralLenders;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel duly completed Compliance Certificate for the Loan Partiesfiscal period ending August 31, each dated as 2018, signed by an Authorized Officer of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Company;
(vi) Evidence that the commitments of the lenders under the Existing Credit Agreement have been terminated and all outstanding obligations thereunder have been paid (other than (x) contingent indemnification obligations, and (y) Letters of Credit which are deemed to be issued under this Agreement in accordance with the terms hereof);
(vii) A completed and executed Loan Request from the Borrowers in substantially the form of Exhibit 2.5.1 and, if applicable, Swing Loan Request from the Borrowers in substantially the form of Exhibit 2.5.2;
(viii) An executed Certificate of Beneficial Ownership for each Foreign Borrower in form and substance acceptable to the Administrative Agent and each Lender, and such other documentation and other information requested by the Administrative Agent or any Lender in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; and
(ix) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Deliveries. (a) On the Closing Date, the Administrative Agent Company shall have received deliver or cause to be delivered to each of Purchaser the following in form and substance reasonably satisfactory to the Administrative Agentfollowing:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties set forth in this Agreement are true and correct in all material respects as of duly executed by the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010Company;
(ii) A Simplified Borrowing Base Certificate prepared as a legal opinion of the Closing Date Company Counsel, in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000D attached --------- hereto;
(iii) A certificate dated a Debenture equal to such Purchaser's Principal Amount, registered in the Closing Date and signed by the Secretary or an Assistant Secretary name of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement and the other Loan Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessPurchaser;
(iv) This Agreement and each a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 40% of such Purchaser's Subscription Amount divided by the Conversion Price, with an exercise price equal to 120% of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing Closing Bid price for the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary Common Stock on the day that is one day prior to reflect valid and perfected first priority Liens in the CollateralClosing Date;
(v) A written opinion of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP the Payoff Letter from Instream Investment Partners, LLC, and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPnational Loan Investors, counsel for the Loan Parties, each dated as of the Closing Date and opining as to the matters set forth in Schedule 6.1.1Ltd.;
(vi) Evidence that adequate insurance required to be maintained under this the Registration Rights Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to duly executed by the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payeeCompany;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Datea certificate, signed by an Authorized Officer the Secretary of DSWthe Company, attaching (i) the charter and by-laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that each Purchaser may rely on such certificate as a representation and warranty of the Company made herein;
(viii) All material consents required to effectuate a certificate, signed by the transactions contemplated herebyChief Executive Officer of the Company, certifying that the conditions specified in Section 2 have been fulfilled as of the Closing, it being understood that each Purchaser may rely on such certificate as though it were a representation and warranty of the Company made herein;
(ix) Evidence that the Existing Loan Escrow Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;duly executed by the Company; and
(x) Results the written voting agreement, in the form of searches Exhibit F attached hereto, of all of the officers, directors and shareholders holding more than 5% of the issued and outstanding shares of Common Stock on the date hereof to vote all Common Stock owned by each of such officers, directors and shareholders as of the record date for the annual meeting of shareholders of the Company in favor of Shareholder Approval amounting to, in the aggregate, at least 50% of the issued and outstanding Common Stock Such agreement is to be delivered within 5 days from Closing.
(b) On the Closing Date, each Purchaser shall deliver or other evidence reasonably satisfactory cause to be delivered to the Administrative Agent Company the following:
(in each case dated as of a date reasonably satisfactory to the Administrative Agenti) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with this Agreement duly executed by such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madePurchaser;
(xiii) An the sum of such Purchaser's Subscription Amount as to the applicable Closing by wire transfer to the Company;
(iii) the Registration Rights Agreement duly executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreementby such Purchaser; and
(xiiiv) Such other documents, instruments and agreements in connection with the Escrow Agreement duly executed by such transactions as the Administrative Agent or its counsel may reasonably requestPurchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (Trinity Learning Corp)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer of each BorrowerOfficer, dated the Closing Date stating that (vw) all the representations and warranties of hereunder and under the Loan Parties set forth in this Agreement Documents are true and correct in all material respects as of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respectsaccurate, (wx) the Loan Parties are in compliance with each of the covenants hereunder and conditions hereunderunder the Loan Documents, (xy) no Material Adverse Effect has occurred since the date of the last audited financial statements of the Borrower delivered to the Administrative Agent (and the Administrative Agent and Required Lenders shall not have otherwise determined) and (z) there is no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010as of closing;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date and signed by the Secretary or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (aA) all action taken by each Loan Party in connection with to validly authorize, duly execute and deliver this Agreement and the other Loan DocumentsDocuments and attaching copies of such resolution or other corporate or organizational action; (bB) the names names, authority and capacity of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (cC) copies of its organizational documents as in effect on the Closing Date, to the extent applicable, certified as of a sufficiently recent date prior to the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued existence and valid existence, good standing and qualification to engage in its business of each Loan Party in the state of its organization and in each state where organized conduct of business or qualified to do businessownership or lease of properties or assets requires such qualification;
(iviii) This Agreement and each of the other Loan Documents signed duly executed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock the parties thereto;
(iv) Appropriate transfer powers and stock or other certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateral;
(v) A written opinion Written opinion(s) of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, each dated as of the Closing Date and opining as in form and substance satisfactory to the matters set forth in Schedule 6.1.1Administrative Agent;
(vi) Evidence that adequate insurance insurance, required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable special endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW[reserved];
(viii) All material consents consents, licenses and approvals required to effectuate for the transactions contemplated herebydelivery and performance by any Loan Party of any Loan Document and the enforceability of any Loan Document against such Loan Party, certified by an Authorized Officer that each is in full force and effect and none other is so required or necessary;
(ix) Evidence that all Indebtedness not permitted under Section 9.1 [Indebtedness], including but not limited to the Existing Loan Agreement has been terminatedCredit Agreement, and all outstanding obligations thereunder shall have been paid in full and that all necessary termination statements, release statements and other releases in connection with all Liens securing such obligations (other than Permitted Liens) have been released;
filed or satisfactory arrangements have been made for such filing (x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (including payoff letters, if applicable, in each case dated as of a date form and substance reasonably satisfactory to the Administrative Agent);
(x) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens Lien searches in acceptable scope and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been madeacceptable results;
(xi) An an executed Collateral Access Agreement landlord’s waiver or other lien waiver agreement from the lessor, warehouse operator or other applicable Person for the fulfillment center and the main distribution center each leased Collateral location as required under the Guaranty and Security Agreement;
(xii) A certificate of an Authorized Officer of the Borrower as to the Solvency of each of the Loan Parties taken as a whole after giving effect to the transactions contemplated by this Agreement;
(xiii) An executed Letter of Direction, along with a completed Funds Flow;
(xiv) Copies of (x) the consolidated financial statements for the Borrower and its Subsidiaries for each Fiscal Year and Fiscal Quarter ended before the date of this Agreement to the extent required to be delivered pursuant to the Existing Credit Agreement and (y) pro forma financial projections (including a pro forma closing balance sheet, pro forma statements of operations and cash flow) for the Fiscal Years 2026 through 2030, on a quarterly basis for 2026 and on an annual basis thereafter, including assumptions used in preparing the forecast financial statements;
(xv) Completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral and each other document required by this Agreement, any other Loan Document or under Law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create, in favor of Administrative Agent, a perfected (to the extent required to be perfected pursuant to the Guaranty and Security Agreement) security interest in or lien upon the Collateral shall have been properly executed by the Loan Party;
(xvi) The Administrative Agent and each Lender shall have received, in form and substance acceptable to the Administrative Agent and each Lender an executed Certificate of Beneficial Ownership and such other documentation and other information requested in connection with applicable “know your customer” rules and regulations and Anti-Money Laundering Laws, including the USA PATRIOT Act; and
(xiixvii) Such other documents, instruments and agreements documents in connection with such transactions as the Administrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Kratos Defense & Security Solutions, Inc.)
Deliveries. On the Closing DateAt Closing, the Administrative Agent Company shall have received each deliver the following items to the Investor, against payment of the following in form and substance reasonably satisfactory to Subscription Price (after deducting the Administrative AgentDeposit) by the Investor:
(a) (i) A certificate of each a copy of the Loan Parties signed by an Authorized Officer register of each Borrower, dated the Closing Date stating that (v) all representations and warranties members of the Loan Parties set forth in this Agreement are true and correct in all material respects applicable Group Company as at the date of the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010;
(ii) A Simplified Borrowing Base Certificate prepared as of the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans transactions contemplated hereby, certified by a director of the respective Group Company to be made a true and complete copy thereof, (ii) a copy of the register of directors of the applicable Group Company as at the date of the Closing, certified by a director of the applicable Group Company to be a true and complete copy thereof, and (iii) a table showing the capitalization of the Company on a fully-diluted basis immediately after the Closing;
(b) duly issued share certificate(s) to the Investor representing the Shares subscribed for by the Investor in the Closing;
(c) a compliance certificate dated on the Closing Date signed by each Warrantor or a duly authorized representative of each Warrantor, as applicable, satisfactory to the Investor and consummation its counsel certifying that all of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including conditions set forth in respect of any outstanding letters of credit issued thereunder) Section 7 have been fulfilled, and payment of fees attaching and expenses owing on the Closing Date), of at least $300,000,000;
(iii) A certificate dated the Closing Date certifying as true and signed by the Secretary or an Assistant Secretary of each complete a copy of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with this Agreement Company’s Memorandum and the other Loan Documents; (b) the names Articles of the Authorized Officers authorized to sign the Loan Documents and their true signatures; and (c) copies of its organizational documents Association as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDate;
(ivd) This Agreement a certificate of good standing issued by the Registrar of Companies of the Cayman Islands dated no earlier than fifteen (15) Business Days prior to the Closing certifying that the Company has been duly incorporated, has paid all required fees and taxes, and is validly existing and in good standing under the laws of the Cayman Islands;
(e) a certificate of good standing or its equivalent issued by the relevant authority in the place of incorporation of each of the other Loan Documents signed by an Authorized Officer Global Market Subsidiaries, if applicable, dated no earlier than fifteen (15) Business Days prior to the Closing certifying that each of each Loan Party the Global Market Subsidiaries, as the case may be, has been duly incorporated, has paid all required fees and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateraltaxes, and evidence is validly existing and in good standing under the laws of filing its place of all Collateral Documents as may be necessary to reflect valid and perfected first priority Liens in the Collateralincorporation;
(vf) A written a legal opinion of each the Company’s Cayman Islands counsel covering, among other things, the capitalization of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP the Company and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPthe amendments to the constitutional documents of the Company, reasonably satisfactory to the Investor and its legal counsel for the Loan Partiesin form and substance, each dated as of on the Closing Date and opining as addressed to the matters set forth in Schedule 6.1.1Investor;
(vig) Evidence that adequate insurance required a legal opinion of the Company’s Hong Kong counsel covering, among other things, the establishment of the HK Subsidiary, the Stage One Reorganization and the Stage One Restructuring Agreements, reasonably satisfactory to the Investor and its legal counsel in form and substance, dated on the Closing Date and addressed to the Investor;
(h) a legal opinion of the Company’s PRC counsel covering, among other things, the establishment of the PRC Subsidiary, reasonably satisfactory to the Investor and its legal counsel in form and substance, dated on the Closing Date and addressed to the Investor;
(i) unaudited consolidated balance sheets and profit and loss statements of the Group Companies for the year ended December 31, 2005 and unaudited consolidated balance sheets and profit and loss statements of the Group Companies for the period ended June 30, 2006, which shall be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto satisfactory in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security AgreementInvestor; and
(xiij) Such other documentsBoard and members resolutions of the applicable Group Companies, instruments as appropriate, each certified by a duly authorized legal representative of the respective Group Company as true and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestcomplete.
Appears in 1 contract
Sources: Subscription Agreement (Ninetowns Internet Technology Group Co LTD)
Deliveries. On the Closing Date, the Administrative Agent shall have received each of the following in form and substance reasonably satisfactory There will be delivered to the Administrative Agentsuch Committed Lender:
(i) A certificate Opinions of each of Borrower's counsel as to the Loan Parties signed by an Authorized Officer of each Borrower, dated the Closing Date stating that (v) all representations and warranties of the Loan Parties matters set forth in this Agreement are true and correct in all material respects as of on the Closing Date, except to the extent such representations and warranties are modified by “materiality” or “Material Adverse Change” or words of similar import, in which case they are true and correct in all respects, (w) the Loan Parties are in compliance with each of the covenants and conditions hereunder, (x) no Potential Default or Event of Default exists, and (y) no Material Adverse Change has occurred since January 30, 2010attached EXHIBIT B;
(ii) A Simplified Borrowing Base Certificate prepared as of duly executed original certificate evidencing the Closing Date in substantially the form of Exhibit 7.3.4.1, showing the sum of Revolving Credit Availability plus the Borrowers’ cash and cash equivalents then on hand, in each case after giving effect to the Loans Initial Warrant to be made on the Closing Date and consummation of the transactions contemplated hereby (including repayment of Indebtedness under the Existing Loan Agreement (including issued to such Committed Lender as described in respect of any outstanding letters of credit issued thereunder) and payment of fees and expenses owing on the Closing DateSection 2.01(c)(i), of at least $300,000,000;
(iii) A certificate dated the Closing Date Correct and signed by the Secretary complete copies of this Agreement, each other Financing Document executed and delivered or an Assistant Secretary of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party to be executed and delivered prior to or in connection with this Agreement the Initial Closing, and the other Loan Documents; (b) the names all Organizational Documents of the Authorized Officers authorized to sign the Loan Documents Borrower and their true signatures; and (c) copies of its organizational documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businesspledgor under any Pledge Agreement;
(iv) This Agreement and each of the other Loan Documents signed by an Authorized Officer of each Loan Party and all appropriate financing statements and appropriate stock powers and certificates and other documents, instruments and agreements evidencing the pledged Collateral, and evidence of filing Certified copies of all Collateral Documents as may be necessary documents evidencing corporate action taken by Borrower and its Subsidiaries which are parties thereto with respect to reflect valid and perfected first priority Liens in the CollateralFinancing Documents;
(v) A written opinion certificate executed on behalf of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Borrower certifying that the conditions set forth in Sections 4.01(a), (c) and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for (d) have been fully satisfied at the Loan Parties, each dated as time of the Closing Date and opining Initial Closing;
(vi) A certificate or certificates, signed by the secretary or a similar official of Borrower certifying as to the names of the respective officers or other officials of Borrower who are authorized to sign this Agreement and the other Financing Documents on Borrower's behalf and as to specimens of the true signatures of such officials, on which each Lender may conclusively rely until a revised certificate is similarly so delivered; and
(vii) A certificate of Borrower signed on Borrower's behalf by Borrower's chief financial officer regarding the matters set forth in Schedule 6.1.1;
(vi) Evidence that adequate insurance required to be maintained under this Agreement is in full force and effect, with additional insured and lender loss payable endorsements attached thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the Administrative Agent as additional insured and lender loss payee;
(vii) A duly completed Compliance Certificate as of the last day of the fiscal quarter of DSW most recently ended prior to the Closing Date, signed by an Authorized Officer of DSW;
(viii) All material consents required to effectuate the transactions contemplated hereby;
(ix) Evidence that the Existing Loan Agreement has been terminated, and all outstanding obligations thereunder have been paid and all Liens securing such obligations have been released;
(x) Results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases have been made;
(xi) An executed Collateral Access Agreement or other lien waiver agreement from the lessor, or other applicable Person for the fulfillment center and the main distribution center as required under the Security Agreement; and
(xii) Such other documents, instruments and agreements in connection with such transactions as the Administrative Agent or its counsel may reasonably requestSection 3.09.
Appears in 1 contract
Sources: Loan Agreement (International Wireless Communications Holdings Inc)