Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement and the amended and restated Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) a Note executed by the Borrower in favor of each Lender requesting a Note; (iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with: (A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank, (B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, (D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, (E) to the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement duly executed by the appropriate parties, (F) a Perfection Certificate, duly executed by each Loan Party; and (G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); (iv) with respect to each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof; (v) an intellectual property security agreement, in substantially the form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc., together with evidence that all action that the Administrative Agent may reasonably deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; (vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; (vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (viii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇ LLP special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (xi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied; (xii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officer; (xiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; and (xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
Appears in 1 contract
Sources: Credit Agreement (Cenveo, Inc)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the amended and restated Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated a pledge and security agreement, in substantially the form of Exhibit G (together with each --------- other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in ------------ each case as amended, the “"Security Agreement”"), duly ------------------ executed by each Loan Party, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) certified copies completed requests for information, dated on or before the date of UCCthe initial Credit Extension, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents statements filed in the jurisdictions referred to in clause (together with copies of such financing statements and documentsB) above 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 debtor, together with copies of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriatefinancing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
(E) to the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement duly executed by the appropriate parties,
(F) copies of the Material Contracts referred to in the Security Agreement, together with, if requested by the Administrative Agent, a consent to such assignment, in substantially the form required under the Security Agreement, duly executed by each party to such Material Contracts other than the Loan Parties,
(G) a Perfection Certificate, duly executed by each Loan Party; and
(GH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ ' and bailees’ ' waiver and consent agreements);
(iv) with respect deeds of trust, trust deeds, deeds to each Mortgaged Propertysecure debt and mortgages, (xother than leasehold mortgages and leasehold deeds of trust), in substantially the form of Exhibit H (with such changes as may be satisfactory to the --------- Administrative Agent and its counsel to account for local law matters) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and covering the properties identified to be mortgaged on Schedules 5.08(c) and (yd) if any portion (together with the ------------------------- Assignments of any Mortgaged Property is at any time located Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in an area identified by each ------------ case as amended, the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto"Mortgages"), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower --------- appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and each delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or that arrangements for the payment thereof satisfactory to the Administrative Agent have been made),
(B) if requested by the Administrative Agent, fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies") in form and substance, ----------------- with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Party relating thereto Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics' and materialmen's Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if requested by the Administrative Agent, American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) if requested by the Administrative Agent, engineering, soils and other reports as to the properties described in the Mortgages, in form and substance and from professional firms reasonably acceptable to the Administrative Agent,
(E) if requested by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(1), along ------------------- with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent's reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent,
(F) evidence of flood the insurance required pursuant by the terms of the Mortgages,
(G) if requested by the Administrative Agent, an appraisal of each of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, and
(H) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to Section 6.07 hereofcreate valid first and subsisting Liens on the property described in the Mortgages has been taken;
(v) an intellectual property security agreement, in substantially the form of Exhibit I (together with each --------- other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement6.12, in each case as amended, ------------ the “"Intellectual Property Security Agreement”"), duly ---------------------------------------- executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc.each Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Vice President, Legal Affairs General Counsel of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan ----------- Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of H▇▇▇▇▇▇ H▇▇▇▇▇▇▇ & R▇▇▇▇ LLP special New York counsel to the Loan Parties, Parties addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters ----------- concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) ---------------- --- that there has been no event or circumstance since the date of the Audited Financial Statements that was not fully disclosed in public filings by Holdings with the SEC before May 16, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officer;
(xiii) if requested by the Administrative Agent, an environmental assessment report, in form and substance satisfactory to the Lenders from an environmental consulting firm acceptable to the Lenders, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any facilities of any Loan Party or any of their respective Subsidiaries, and the Lenders shall be satisfied with the nature and amount of any such matters and with remedial or other plans with respect thereto;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(xv) certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request;
(xvi) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended March 31, 2006, signed by chief executive officer, chief financial officer, treasurer or controller of the Borrower; and
(xivxvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
Appears in 1 contract
Sources: Credit Agreement (Cenveo, Inc)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Funding Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective Funding Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Intercreditor Agreement and the amended and restated Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “a Security Agreement”), Agreement duly executed by each Loan Party, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper Financing Statements in form appropriate for filing financing statements, duly filed on or before the day of the initial Credit Extension under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) certified copies completed requests for information, dated on or before the date of UCCthe initial Credit Extension, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents statements filed in the jurisdictions referred to in clause (together with copies of such financing statements and documentsB) above 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 debtor, together with copies of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriatefinancing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,, and
(E) to the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement duly executed by the appropriate parties,
(F) a Perfection Certificate, duly executed by each Loan Party; and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) with respect deeds of trust, trust deeds, deeds to each Mortgaged Propertysecure debt, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination mortgages, leasehold mortgages and (y) if any portion leasehold deeds of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof;
(v) an intellectual property security agreementtrust, in substantially the form of Exhibit I G (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the properties listed on Schedule 4.01(a)(iv) (together with the Assignments of Leases and Rents referred to therein and each other intellectual property security agreement and intellectual property security agreement supplement mortgage delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement6.12, in each case as amended, the “Intellectual Property Security AgreementMortgages”), duly executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc.the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) if required by the Administrative Agent, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required by the Administrative Agent, American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the initial Credit Extension, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) if required by the Administrative Agent, engineering, soils and other reports as to the properties described in the Mortgages, in form and substance and from professional firms acceptable to the Administrative Agent,
(E) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(F) evidence of the insurance required by the terms of the Mortgages,
(G) if required by the Administrative Agent, an appraisal of each of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, and
(H) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect create valid first and subsisting Liens on the Liens created under property described in the Intellectual Property Security Agreement Mortgages has been taken;
(viv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viivi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiivii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP special LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 I-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xiix) copies of the financial statements referred to in Sections 5.05(a) and (b) and a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xiix) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officer;
(xiiixi) if required by the Administrative Agent, an environmental assessment report, in form and substance satisfactory to the Lenders from an environmental consulting firm acceptable to the Lenders, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any facilities of Holdings, the Borrower or any of their respective Subsidiaries, and the Lenders shall be satisfied with the nature and amount of any such matters and with Holdings’ plans with respect thereto;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(xiii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Holdings ended October 1, 2006, signed by chief executive officer, chief financial officer, treasurer or controller of the Holdings; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
Appears in 1 contract
Sources: Credit Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Date Closing Date, as applicable (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective DateDate and) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the amended Guaranty in each case dated as of the Amendment and restated Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerRestatement Effective Date;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, IP Security Agreements in each case case, as amended, of the “Security Amendment and Restatement Effective Date and (within a reasonable time period from the Amendment and Restatement Effective Date) Account Control Agreements for the deposit or investment accounts identified on Schedule 4.01(c)(ii) of the Existing Term Loan Agreement”), duly executed by each Loan Party, together with:
(A) certificates (if any) representing copies of financing statements in the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) proper Financing Statements in form appropriate for filing filed under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementAgreement and the other Collateral Documents (as applicable), covering the Collateral described in the Security Agreement,Agreement (other than the Mortgages) (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements in respect of the Existing Revolving Credit Agreement and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent where Collateral in excess of $10,000,000 is located), and all other documents and instruments required to perfect or evidence the Collateral Agent’s security interest in the Collateral executed and in each case, filed or in proper form for filing, as applicable, on the Amendment and Restatement Effective Date; provided, that perfection steps with respect to property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection is excessive relative to the benefits provided; and
(CB) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date completed requests for information listing all effective financing statements, lien notices or comparable documents statements filed in the jurisdictions referred to in clause (together with copies of such financing statements and documentsA) above that name any Loan Party as debtor debtor, together with copies of such other financing statements,
(iii) within 60 days of the Amendment and that are filed in those state Restatement Effective Date (or within a reasonable time period thereafter, as determined by the Administrative Agent), the Borrower use its reasonable efforts to, and county jurisdictions in which any shall cause each Loan Party is organized or maintains to use its principal place of business and such other searches that are required by the Perfection Certificate or that reasonable efforts to, deliver to the Administrative Agent deems necessary or appropriate,
(D) evidence of the completion of all other actions, recordings and filings of or it being understood that no such requirements shall apply with respect to the Security Agreement Borrower’s facility located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ until the date which is 12 months following the Amendment and Restatement Date, provided such facility remains in the ownership of the Loan Parties on such date):
(A) a Mortgage with respect to each property listed on Schedule 4.01(c)(iii) of the Restated Term Loan Agreement, together with any subordination agreements, if required, together with evidence such Mortgage has been duly executed, acknowledged and delivered by a duly authorized officer of each party thereto on or before such date and is in form suitable for filing and recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to perfect create a valid and subsisting perfected Lien, excepting only Permitted Encumbrances, on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided, that any such Mortgage will not be required where the Administrative Agent determines in its reasonable discretion that the costs of obtaining such Mortgage or Mortgagee amendment, as applicable, is excessive relative to the benefits provided,
(B) copies of any existing American Land Title Association/American Congress on Surveying and Mapping form surveys,
(C) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (including zoning endorsements) and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid and subsisting perfected Liens created therebyon the property described therein, free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) excepting only Permitted Encumbrances and such other Liens permitted by Section 7.01 of the Restated Term Loan Agreement, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmens’ Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may reasonably deem necessary or desirable, and, with respect to any property located in a state in which a zoning endorsement is not available (or for which a zoning endorsement is not available at a premium that is not excessive), if requested by the Administrative Agent, a zoning compliance letter from the applicable municipality or a zoning report from Planning and Zoning Resource Corporation (or another person reasonably acceptable to the Administrative Agent), in each case satisfactory to the Administrative Agent,
(D) favorable opinions of local counsel to the Loan Parties in states in which the Mortgaged Property is located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings, in form and substance reasonably satisfactory to the Administrative Agent,
(E) to evidence that all fees, costs and expenses have been paid in connection with the extent not previously delivered to preparation, execution, filing and recordation of the Administrative AgentMortgages, including, without limitation, reasonable attorneys’ fees, filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes and title search charges and other charges incurred in connection with the Account Control Agreements referred to recordation of the Mortgages and the other matters discussed in the Security Agreement duly executed by the appropriate partiesthis Clause (iii),
(F) no later than three (3) Business Days prior to the date on which a Perfection CertificateMortgage is executed and delivered pursuant to this Clause (iii), duly executed in order to comply with the Flood Laws, the Administrative Agent shall have received the following documents: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”),
(G) evidence of the insurance required by each Loan Party; the terms of the Mortgages, and
(GH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect create valid and subsisting Liens on the Liens created under property described in the Security Agreement has Mortgages, have been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);or delivered as applicable.
(iv) with respect to each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination certificates representing the Pledged Equity accompanied by undated stock powers executed in blank and (y) if any portion of any Mortgaged Property is at any time located instruments evidencing the Pledged Debt indorsed in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof;blank,
(v) an intellectual property security agreement, in substantially a duly prepared and completed Perfection Certificate dated the form of Exhibit I (together with each other intellectual property security agreement Amendment and intellectual property security agreement supplement delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement, in each case as amended, the “Intellectual Property Security Agreement”), duly Restatement Effective Date and executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc.a Responsible Officer of each Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement has been takenattachments contemplated thereby;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents, (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyparty and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement;
(vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇ LLP special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xiix) copies of the financial statements referred to in Section 6.01 of the Restated Term Loan Agreement;
(x) a certificate signed by a Responsible Officer of the Borrower certifying that and each other Loan Party, as of the Closing Date, as to: (A) the absence of any Default, (B) the truth of the representations and warranties contained in Article V of the Restated Term Loan Agreement or any other Loan Document, (C) the satisfaction of all the conditions specified precedent to the Amendment and Restatement Effective Date forth in Sections 4.02(athis Section 5 required to be satisfied on or before the Amendment and Restatement Effective Date and that this Amendment and Restatement Agreement is effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents as of the Amendment and Restatement Effective Date and (bE) have that there has been satisfiedno event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Amendment and Restatement Effective Date;
(xiixi) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officerofficer dated as of the Amendment and Restatement Effective Date;
(xii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, dated as of the Amendment and Restatement Effective Date and addressed to the Administrative Agent and each Lender, in a form reasonably satisfactory to the Administrative Agent;
(xiii) an environmental assessment report for each of the properties described in the Mortgages, in form and substance reasonably satisfactory to the Lenders, from an environmental consulting firm reasonably acceptable to the Lenders, for which all fees have been paid, and dated within 60 days of the date of recordation of the Mortgage , and the Administrative Agent shall be reasonably satisfied with the nature and amount of any such matters and with Holdings’ and the Borrower’s plans with respect thereto, to be delivered no later than five Business Days prior to the time the respective Mortgages are required to be recorded pursuant to this Section 5 (it being understood that no such environmental assessment report shall be required with respect to the Borrower’s facility located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇);
(xiv) evidence reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with ;
(xv) fully executed copies of the certificates of insurance, naming Loan Documents to be entered into on the Closing Date and the Amendment and Restatement Effective Date in each case in form and substance reasonably satisfactory to the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; and
(xivxvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender Agent reasonably may require.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective DateClosing Date and) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the amended and restated Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”, IP Security Agreements and (within a reasonable time period from the Closing Date) Account Control Agreements for the deposit or investment accounts identified on Schedule 4.01(c)(ii), duly executed by each Loan Party, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed financing statements in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security AgreementAgreement and the other Collateral Documents (as applicable), covering the Collateral described in the Security Agreement,Agreement (other than the Mortgages) (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements in respect of the Existing Revolving Credit Agreement and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent where Collateral in excess of $10,000,000 is located), and all other documents and instruments required to perfect or evidence the Collateral Agent’s security interest in the Collateral executed and in proper form for filing, in each case to be filed or recorded, as applicable, on the Closing Date; provided, that perfection steps with respect to property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection is excessive relative to the benefits provided; and
(CB) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date completed requests for information listing all effective financing statements, lien notices or comparable documents statements filed in the jurisdictions referred to in clause (together with copies of such financing statements and documentsA) above that name any Loan Party as debtor debtor, together with copies of such other financing statements,
(iii) within 60 days of the Closing Date (or within a reasonable time period thereafter, as determined by the Administrative Agent), the Borrower use its reasonable efforts to, and that are filed in those state and county jurisdictions in which any shall cause each Loan Party is organized or maintains to use its principal place of business and such other searches that are required by the Perfection Certificate or that reasonable efforts to, deliver to the Administrative Agent deems necessary or appropriate,
(D) evidence of the completion of all other actions, recordings and filings of or it being understood that no such requirements shall apply with respect to the Security Agreement Borrower’s facility located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ until the date which is 12 months following the Closing Date, provided such facility remains in the ownership of the Loan Parties on such date):
(A) a Mortgage with respect to each property listed on Schedule 4.01(c)(iii), together with any subordination agreements, if required, together with evidence such Mortgage has been duly executed, acknowledged and delivered by a duly authorized officer of each party thereto on or before such date and is in form suitable for filing and recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to perfect create a valid and subsisting perfected Lien, excepting only Permitted Encumbrances, on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided, that any such Mortgage will not be required where the Administrative Agent determines in its reasonable discretion that the costs of obtaining such Mortgage is excessive relative to the benefits provided,
(B) copies of any existing American Land Title Association/American Congress on Surveying and Mapping form surveys,
(C) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (including zoning endorsements) and in amounts reasonably acceptable to the Administrative Agent, issued, coninsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid and subsisting perfected Liens created therebyon the property described therein, free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) excepting only Permitted Encumbrances and such other Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmens’ Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may reasonably deem necessary or desirable, and, with respect to any property located in a state in which a zoning endorsement is not available (or for which a zoning endorsement is not available at a premium that is not excessive), if requested by the Administrative Agent, a zoning compliance letter from the applicable municipality or a zoning report from Planning and Zoning Resource Corporation (or another person reasonably acceptable to the Administrative Agent), in each case satisfactory to the Administrative Agent,
(D) favorable opinions of local counsel to the Loan Parties in states in which the Mortgaged Property is located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings, in form and substance reasonably satisfactory to the Administrative Agent,
(E) to evidence that all fees, costs and expenses have been paid in connection with the extent not previously delivered to preparation, execution, filing and recordation of the Administrative AgentMortgages, including, without limitation, reasonable attorneys’ fees, filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes and title search charges and other charges incurred in connection with the Account Control Agreements referred to recordation of the Mortgages and the other matters discussed in the Security Agreement duly executed by the appropriate partiesthis Section,
(F) no later than three (3) Business Days prior to the date on which a Perfection CertificateMortgage is executed and delivered pursuant to this Agreement, duly executed in order to comply with the Flood Laws, the Administrative Agent shall have received the following documents: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”),
(G) evidence of the insurance required by each Loan Party; the terms of the Mortgages, and
(GH) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect create valid and subsisting Liens on the Liens created under property described in the Security Agreement has Mortgages, have been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);or delivered as applicable.
(iv) with respect to each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination certificates representing the Pledged Equity accompanied by undated stock powers executed in blank and (y) if any portion of any Mortgaged Property is at any time located instruments evidencing the Pledged Debt indorsed in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof;blank,
(v) an intellectual property security agreement, in substantially a duly prepared and completed Perfection Certificate dated the form of Exhibit I (together with each other intellectual property security agreement Closing Date and intellectual property security agreement supplement delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc.a Responsible Officer of each Loan Party, together with evidence that all action that the Administrative Agent may reasonably deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement has been takenattachments contemplated thereby;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents, (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyparty and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement;
(vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇ LLP special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xiix) copies of the financial statements referred to in Sections 5.05(a) and (b);
(x) a certificate signed by a Responsible Officer of the Borrower certifying that and each other Loan Party, as of the Closing Date, as to: (A) the absence of any Default, (B) the truth of the representations and warranties contained in Article V or any other Loan Document, (C) the satisfaction of all the conditions specified precedent to the Closing Date forth in Sections 4.02(aSection 4.01 required to be satisfied on or before the Closing Date and that this Agreement and the Term Loan Amendment and Restatement Agreement are effective, (D) the payment in full of all fees and expenses due in respect of the Loan Documents as of the Closing Date and (bE) have that there has been satisfiedno event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Date;
(xiixi) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officer;
(xii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, dated as of the Closing Date and addressed to the Administrative Agent and each Lender, in a form reasonably satisfactory to the Administrative Agent;
(xiii) an environmental assessment report for each of the properties described in the Mortgages, in form and substance reasonably satisfactory to the Lenders, from an environmental consulting firm reasonably acceptable to the Lenders, for which all fees have been paid, and dated within 60 days of the date of recordation of the Mortgage, and the Administrative Agent shall be reasonably satisfied with the nature and amount of any such matters and with Holdings’ and the Borrower’s plans with respect thereto, to be delivered no later than five Business Days prior to the time the respective Mortgages are required to be recorded pursuant to Section 4.01(c)(iii) (it being understood that no such environmental assessment report shall be required with respect to the Borrower’s facility located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇);
(xiv) evidence reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with ;
(xv) fully executed copies of the certificates of insurance, naming Term Loan Documents to be entered into on the Closing Date in each case in form and substance reasonably satisfactory to the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; and
(xivxvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender Agent reasonably may require.
Appears in 1 contract
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Account Release Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective Account Release Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and in connection with the amended and restated Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated pledge and security agreement, in substantially the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of proper Financing Statements financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in form appropriate order to perfect the Liens created under the Security Agreement covering the Collateral described therein or such other evidence reasonably satisfactory to the Collateral Agent that such financing statements have been duly submitted for filing filing,
(C) completed bringdown requests for information, dated on or before the Account Release Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement and the other Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents has been taken (including commercially reasonable efforts to receive duly executed payoff letters, mortgage releases, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements reasonably requested by the Administrative Agent) including covering any property (including fixtures) subject to Liens under the 2007 FRN Documents); provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided, and
(F) A duly prepared and completed Perfection Certificate dated the Account Release Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(ii) in connection with the Mortgages:
(A) (i) acknowledgment copies or stamped receipt copies of proper financing statements (including fixture filings), duly filed on or before the Account Release Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, Mortgages covering the Collateral described in therein or such other evidence reasonably satisfactory to the Security Agreement,
(C) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of Collateral Agent that such financing statements have been duly submitted for filing and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate,
(Dii) evidence that counterparts of the completion of Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all other actions, recordings and filings of filing or with respect to the Security Agreement recording offices that the Administrative Agent may deem necessary or desirable in order to perfect create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) if required by the Administrative Agent, updates to the fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens created therebyby or permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, if available) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) if required by the Administrative Agent, updates to previously delivered or additional deliverables described in Sections 4.01(c)(iii)(A), (B) and (C), and Sections 4.01(c), (x), (xi) and (xii),
(D) if required by the Administrative Agent, estoppel and consent agreements, in form and substance satisfactory to the Administrative Agent, executed by each of the lessors of the leased real properties listed on Schedule 5.08(d)(i), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent,
(E) to evidence of the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement duly executed insurance required by the appropriate parties,terms of the Mortgages, and
(F) a Perfection Certificate, duly executed by each Loan Party; and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect create valid first and subsisting Liens on the Liens created under property described in the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) with respect to each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof;
(v) an intellectual property security agreement, in substantially the form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc., together with evidence that all action that the Administrative Agent may reasonably deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement Mortgages has been taken;
(viiii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents (as applicable), (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyparty and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement;
(viiiv) such documents and certifications or bring downs of any such documents previously delivered as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇ LLP special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xv) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xivi) a certificate signed by a Responsible Officer of the Borrower certifying and each other Loan Party, as of the Account Release Date, as to: (A) the absence of any Default or Event of Default under the Loan Documents and the other Transaction Documents, (B) the truth of the representations and warranties contained in the Loan Documents, (C) the satisfaction or waiver of all the Account Release Conditions, and that the conditions specified Credit Agreement, the Rights Offering Documents and the Revolving Credit Agreement are effective, (D) the payment in Sections 4.02(a) full of all fees and expenses due in respect of the Loan Documents substantially simultaneously with the occurrence of the Account Release Date and (bE) have that there has been satisfiedno event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Date;
(xiivii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the TransactionTransaction and the Emergence (including the distributions to occur upon Emergence), from its chief financial officer;
(xiiiviii) evidence that all insurance required to be maintained pursuant a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Documents has been obtained Parties, dated as of the Account Release Date and is addressed to the Administrative Agent and each Lender in effecta form reasonably acceptable to the Administrative Agent;
(ix) any opinions of local counsel to the Loan Parties in each of the respective states in which the properties covered by the Mortgages executed and delivered hereunder are located, together with the certificates of insurance, naming as requested by the Administrative Agent, on behalf dated as of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect Account Release Date and addressed to the assets Administrative Agent and properties each Lender in a form reasonably acceptable to the Administrative Agent;
(x) a duly completed Compliance Certificate as of the last day of the fiscal year of Holdings ended December 27, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of Holdings;
(xi) fully executed copies of the Revolving Credit Loan Parties that constitutes CollateralDocuments (including the schedules thereto) in each case in form and substance reasonably satisfactory to the Arrangers; and
(xivxii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender Agent reasonably may require.
Appears in 1 contract
Sources: Credit Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Borrowing Date (or, in the case of (x) certificates of governmental officials, a recent date before the Amendment Borrowing Date and Restatement Effective (y) the documents and certificates set forth in Section 4.01(c)(ii) below to be held in escrow and dated on and as of the Account Release Date and the Mortgages set forth in Section 4.01(c)(iii) below to be executed on and dated the Account Release Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) (x) executed counterparts of this Agreement, the Intercreditor Agreement, the Escrow Agreement and the amended and restated Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
Borrower and (iiy) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iiiii) an amended a Security Agreement, IP Security Agreements and restated pledge and security agreement, in substantially (within a reasonable time period from the form of Exhibit G (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.12Closing Date) Account Control Agreements for the deposit or investment accounts identified on Schedule 4.01(c)(ii), in each case as amended, to be held in escrow until the “Security Agreement”), duly executed by each Loan PartyAccount Release Date, together with:
(A) certificates financing statements (if anyincluding fixture filings) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Mortgages and the other Collateral Documents (as applicable), covering the Collateral described in the Security Agreement,, the Mortgages and the other Collateral Documents (as applicable), and all other documents and instruments required to perfect or evidence the Collateral Agent’s security interest in the Collateral executed and in proper form for filing, in each case to be held in escrow by the Collateral Agent and to be filed or recorded, as applicable, on the Account Release Date; provided, that perfection steps with respect to foreign intellectual property will not be required where the Administrative Agent determines in its reasonable discretion that the costs of perfection materially outweigh the benefits provided; and
(CB) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date completed requests for information listing all effective financing statements, lien notices or comparable documents statements filed in the jurisdictions referred to in clause (together with copies of such financing statements and documentsA) above 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 debtor, together with copies of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriatefinancing statements,
(Diii) evidence deeds of the completion trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
(E) to the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement duly executed by the appropriate parties,
(F) a Perfection Certificate, duly executed by each Loan Party; and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) with respect to each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof;
(v) an intellectual property security agreementtrust, in substantially the form of Exhibit I G (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) in form for recording and covering the properties listed on Schedule 4.01(c)(iii) (together with each other intellectual property security agreement the Assignments of Leases and intellectual property security agreement supplement delivered pursuant Rents referred to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement, therein in each case as amended, the “Intellectual Property Security AgreementMortgages”), duly executed together with the Subordination of Leases, if required, and in a form acceptable to Administrative Agent in each case to be delivered by CMS G▇▇▇▇▇▇▇ Packaging Systemsthe Closing Date (or within a reasonable time period thereafter) to be held in escrow by the Administrative Agent and to be executed, Inc.filed or recorded, as applicable, on the Account Release Date, together with evidence that the following, in each case to be delivered within a reasonable time period after the Closing Date:
(A) if required by the Administrative Agent, American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all action that necessary fees (where applicable) have been paid, and dated no more than 60 days before the Closing Date, certified to the Administrative Agent may in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the states in which the property described in such surveys is located and reasonably deem necessary in order acceptable to perfect the Liens created under Administrative Agent, showing all buildings and other improvements, any off-site improvements, the Intellectual Property Security Agreement has been taken;location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent,
(viB) if required by the Administrative Agent, engineering and zoning reports (and other reports if reasonably required by the Administrative Agent) as to the properties described in the Mortgages, for which all fees have been paid, and dated no more than 90 days before the Account Release Date, certified to the Administrative Agent, in form and substance and from professional firms reasonably acceptable to the Administrative Agent, and
(C) if required by the Administrative Agent, an appraisal of each of the properties described in the Mortgages complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989 for which all fees have been paid, and dated no more than 90 days before the Account Release Date, in form and substances and from professional firms reasonably acceptable to Administrative Agent.
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require (i) certifying the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Transaction Documents, (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyparty and (iii) containing appropriate attachments, including the Organization Documents of each Loan Party and, if applicable, a true and correct copy of its by-laws or operating, management or partnership agreement;
(viiv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇ LLP special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xvi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xivii) copies of the financial statements referred to in Sections 5.05(a) and (b);
(viii) a certificate signed by a Responsible Officer of the Borrower certifying and each other Loan Party, as of the Closing Date, as to: (A) the absence of any Default or Event of Default, (B) the truth of the representations and warranties contained in Article V (other than the Account Release Date Representations) or any other Loan Document, (C) the satisfaction of all the conditions precedent to the Closing set forth in Section 4.01 required to be satisfied on or before the Closing Date and that the conditions specified Credit Agreement is effective, the proceeds of the Rights Offering have been deposited into an escrow or segregated account and the Rights Offering Documents have been executed and delivered and upon the effective date of the Plan, the Rights Offering will be effective, (D) the payment in Sections 4.02(a) full of all fees and expenses due in respect of the Loan Documents as of the Closing Date and (bE) have that there has been satisfiedno event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect other than as a result of the Cases or as described in the Disclosure Statement or in the Borrower’s filings with the SEC made prior to the Closing Date;
(xiiix) certificates attesting a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Solvency Loan Parties, dated as of each Loan Party before the Closing Date and after giving effect addressed to the TransactionAdministrative Agent and each Lender, from its chief financial officerin a form reasonably acceptable to the Administrative Agent;
(xiiix) an environmental assessment report for each of the properties described in the Mortgages, in form and substance reasonably satisfactory to the Lenders, from an environmental consulting firm reasonably acceptable to the Lenders, for which all fees have been paid, and dated no more than 90 days before the Account Release Date, which reports shall identify existing and potential environmental concerns, and shall quantify related costs and liabilities, associated with the operations facilities of Holdings, the Borrower and their respective Subsidiaries, and the Administrative Agent shall be reasonably satisfied with the nature and amount of any such matters and with Holdings’ and the Borrower’s plans with respect thereto, to be delivered by the Closing Date (or within a reasonable time period thereafter);
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf ;
(xii) fully executed copies of the Lenders, as an additional insured or loss payee, as Rights Offering Documents and copies of the case may be, under all insurance policies maintained with respect Revolving Credit Agreement in substantially final form and substance reasonably satisfactory to the assets and properties of the Loan Parties that constitutes CollateralArrangers; and
(xivxiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender Agent reasonably may require.
Appears in 1 contract
Sources: Credit Agreement (Spansion Inc.)
Documents, Certificates, Opinions and Other Instruments. The Administrative Agent’s receipt of a copy of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective Closing Date) and each in form and substance satisfactory to the Required Lenders and the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement Agreement, the Payment Letters and the amended and restated a Guaranty, sufficient in number for distribution to each case, duly and properly executed and delivered by each of the Administrative Agent, each Lender and the Borrowerparties thereto;
(ii) a Note duly and properly executed by a Responsible Officer of the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated a pledge and security agreement, in substantially the form of Exhibit G agreement (together with each other pledge and security agreement and pledge and security agreement supplement delivered by any Loan Party pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly and properly executed by each Loan Partyof the parties thereto, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank by the applicable Loan Party and instruments evidencing the Pledged Debt (if any) indorsed in blankblank by the applicable Loan Party,
(B) proper Financing Statements financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, Agreement covering the Collateral described in the Security Agreementtherein,
(C) certified copies of UCC, tax and insolvency, tax, judgment lien and execution searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state state, territory and county jurisdictions in which any Loan Party is organized or maintains its principal place of business business, and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
(E) to the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement duly executed by the appropriate parties,
(F) a Perfection Certificate, duly executed and properly completed by a Responsible Officer of each Loan Party; , and
(GF) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and/or the Orders, as applicable, has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)taken;
(iv) with respect to each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof[reserved];
(v) an intellectual property security agreement, in substantially the form of Exhibit I (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc., together with evidence that all action that the Administrative Agent may reasonably deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken[reserved];
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vii) such documents and certifications as the Administrative Agent may reasonably require require, including without limitation copies of each Loan Party’s Organizational Documents and certificates of good standing, to evidence that each Loan Party is duly organized or formed and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request[reserved];
(ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇▇▇ LLP LLP, special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(x) a favorable opinion of Polsinelli, special Colorado, Georgia, Maryland and Virginia counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xi) [reserved];
(xii) a favorable opinion of Bose ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special Indiana counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(xiii) each other Loan Document required by the Administrative Agent or the Required Lenders to be effective on the Closing Date, in each case, duly and properly executed by each of the parties thereto;
(xiv) [reserved];
(xv) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xixvi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied;
(xiixvii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officer[reserved];
(xiiixviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; and
(xivxix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender Agent or any Required Lender reasonably may require.
Appears in 1 contract
Sources: Senior Secured Super Priority Priming Debtor in Possession Credit Agreement (Cenveo, Inc)
Documents, Certificates, Opinions and Other Instruments. The Subject to the Post Closing Agreement, the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Amendment and Restatement Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Amendment and Restatement Effective Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the amended and restated GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) an amended and restated a pledge and security agreement, in substantially the form of Exhibit G F (together with each other pledge and security agreement and pledge and security agreement supplement Perfection Certificate Supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates (if any) representing the Pledged Equity referred to therein (to the extent such Pledged Equity is certificated) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt (if any) indorsed in blank,
(B) proper Financing Statements financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) certified copies completed requests for information, dated on or before the date of UCCthe initial Credit Extension, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents statements filed in the jurisdictions referred to in clause (together with copies of such financing statements and documentsB) above 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 debtor, together with copies of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriatefinancing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
(E) to the extent not previously delivered to the Administrative Agent, the Account Control Agreements referred to in the Security Agreement and duly executed by the appropriate parties,
(F) Copies of an appraisal of all equipment owned by the Loan Parties located at 8814 and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and at the Company’s headquarters in San Diego, California, specifying the aggregate fair market value and orderly liquidation value of such equipment, which appraisal shall be from a Perfection Certificate, duly executed by each Loan PartyPerson acceptable to the Lenders; and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements)statements;
(iv) with respect deeds of trust, trust deeds, deeds to each Mortgaged Propertysecure debt, (x) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and the evidence of flood insurance required pursuant to Section 6.07 hereof;
(v) an intellectual property security agreementmortgages, in substantially the form of Exhibit I G (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the properties identified to be mortgaged on Schedule 5.08(c), as indicated by an asterisk on each such Schedule (together with the Assignments of Leases and Rents referred to therein and each other intellectual property security agreement and intellectual property security agreement supplement mortgage delivered pursuant to Section 6.12 or for the avoidance of doubt pursuant to the Existing Credit Agreement6.12, in each case as amended, the “Intellectual Property Security AgreementMortgages”), duly executed by CMS G▇▇▇▇▇▇▇ Packaging Systems, Inc.the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the initial Credit Extension, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Mortgages,
(E) an appraisal of the all real property of any Loan Party subject to the Mortgages, which appraisal shall be from a Person acceptable to the Lenders, and
(F) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect create valid first and subsisting Liens on the Liens created under property described in the Intellectual Property Security Agreement Mortgages has been taken;
(viv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(viivi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed formed, and that the Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiivii) a favorable opinion of I▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Vice President, Legal Affairs of Holdings, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of H▇▇▇▇▇ H▇▇▇▇▇▇ & R▇▇▇ LLP special Godward Kronish LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 H-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(xviii) a favorable opinion of ▇▇▇▇▇▇▇▇ & Shohl, LLP, local counsel to the Loan Parties in the State of Ohio, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the Loan Documents and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xix) a certificate signed by a Responsible Officer of the Borrower Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since March 31, 2007 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect, and (D) a calculation of Unrestricted Cash as of the Closing Date;
(xi) an environmental assessment report from an environmental consulting firm acceptable to the Lenders, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with Real Property of the Company or any of its respective Subsidiaries that is subject to a Mortgage hereunder, and the Lenders shall be satisfied with the nature and amount of any such matters and with the Borrowers’ plans with respect thereto;
(xii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the Transaction, from its chief financial officer;
(xiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insuranceinsurance and the related endorsements, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.;
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