Initial Funding Date. The obligation of each UST Tranche A Term Lender to make the UST Tranche A Term Loans on the Initial Funding Date shall be subject to the occurrence of the Effective Date and satisfaction (or waiver pursuant to Article 9) of the following conditions precedent: (a) Each Lender that has requested a Term Note at least two Business Days in advance of the Effective Date shall have received such Term Note executed by the Borrower in favor of such Lender, properly executed by each Responsible Officer of the Borrower, dated as of the Effective Date. (b) The Administrative Agent and the Required Lenders shall have received, on behalf of themselves, the Collateral Agent and the Lenders, an opinion of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Loan Parties, and (ii) from each local counsel for the Loan Parties listed on Schedule 4.02(b), in each case, dated the Initial Funding Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders and in customary form and substance, and the Borrower hereby requests such counsel to deliver such opinions. (c) The Administrative Agent and the Required Lenders shall have received (i) a copy of the certificate or articles of incorporation or organization or certificate of formation, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (to the extent applicable) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Initial Funding Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Initial Funding Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization or certificate of formation of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party on the Initial Funding Date, and (E) as to the absence of any proceeding for the dissolution or liquidation of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above. (i) The Administrative Agent and the Required Lenders shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to each Loan Party in the states or other jurisdictions of formation of such Loan Party and with respect to such other locations and names listed on the Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search and (ii) each of the Intellectual Property Security Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates, if any, representing the Equity Interests pledged by the Borrower and the Guarantors accompanied by undated stock powers executed in blank and (y) copies of documents and instruments to be recorded or filed that the Required Lenders may deem, subject to Section 6.13, reasonably necessary to satisfy the Collateral and Guarantee Requirement. (e) Prior to or substantially concurrently with the funding of the Loans on the Initial Funding Date, the IBT Agreement shall be in full force and effect. (f) Immediately after giving effect to the transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness for borrowed money other than (i) Indebtedness outstanding under this Agreement, (ii) the ABL Facility Indebtedness, (iii) the Tranche B-2 Term Loan Facility Indebtedness, (iv) the UST Tranche B Term Loan Facility Indebtedness and (v) Indebtedness permitted pursuant to Section 7.03. (g) The Administrative Agent and the Required Lenders shall have received a solvency certificate, substantially in the form set forth in Exhibit H, from the chief financial officer or chief accounting officer or other officer with equivalent duties of the Borrower, or in lieu thereof at the option of the Borrower, an opinion of a nationally recognized valuation firm as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries as of the Initial Funding Date. (h) The Administrative Agent, the Collateral Agent and the Required Lenders shall have received all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, including without limitation, a duly executed W-9 tax form (or such other applicable IRS tax form) of the Borrower, that has been reasonably requested in writing at least five Business Days prior to the Initial Funding Date. (i) The Administrative Agent and the Required Lenders shall have received a certificate from an officer of the Borrower certifying that since December 31, 2019, there has not occurred any Material Adverse Effect. (j) The Administrative Agent, the Collateral Agent and the Required Lenders shall have received all applicable fees and other amounts due and payable on or prior to the Initial Funding Date, including, to the extent invoiced at least three Business Days prior to the Initial Funding Date (except as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including the fees and expenses of legal counsel) required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document on or prior to the Initial Funding Date; provided, that, Borrower hereby acknowledges and agrees that any such amounts which shall be due and payable to the Administrative Agent and the Collateral Agent shall be paid to the Administrative Agent and the Collateral Agent on or prior to the Initial Funding Date regardless of the date when such amounts are invoiced to the Borrower. (k) To the extent required by Section 6.07, the Administrative Agent shall have received evidence that the insurance required by Section 6.07 is in effect, for the benefit of the Collateral Agent, as additional insured on behalf of the Secured Parties or as loss payee thereunder. (l) The representations and warranties set forth in Article 5 and in each other Loan Document shall be true and correct in all material respects on and as of the Initial Funding Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, that any such representation and warranty that is qualified by “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to such qualification therein) on and as of the Initial Funding Date with the same effect as though made on and as of such date or such earlier date, as applicable.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (YRC Worldwide Inc.), Term Loan Credit Agreement
Initial Funding Date. The obligation obligations of each UST Tranche A Term Lender (i) the Lenders to make Loans and (ii) any Issuing Bank to issue Letters of Credit or increase the UST Tranche A Term Loans on the Initial Funding Date shall be stated amounts of Letters of Credit hereunder are subject to the occurrence of the Effective Date and satisfaction (or waiver pursuant to Article 9in accordance with Section 10.08) of the following conditions precedenton the date of the initial Credit Event hereunder:
(a) Each Lender that has requested a Term Note at least two Business Days in advance of the Effective Date The Administrative Agent shall have received received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a written opinion of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent and the Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such Term Note executed by other matters relating to the Borrower in favor of such Lender, properly executed by each Responsible Officer of Loan Documents as the Borrower, dated as of the Effective DateAdministrative Agent shall reasonably request.
(b) The Administrative Agent and the Required Lenders shall have received, on behalf of themselves, the Collateral Agent and the Lenders, an opinion of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Loan Parties, and (ii) from each local counsel for the Loan Parties listed on Schedule 4.02(b), in each case, dated the Initial Funding Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders and in customary form and substance, and the Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent and the Required Lenders shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or memorandum and articles of incorporation or organization incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Loan Party, certified(A) in the case of a corporation, if applicable, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person’s jurisdiction of incorporation) of the state jurisdiction of its organization, and a certificate as to the good standing (or similar concept, to the extent applicablesuch concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date, date from such Secretary of State (or other similar official), or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary or similar Governmental Authority; officer of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Initial Funding Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the by-laws or operating bylaws (or partnership agreement, limited liability companycompany agreement or other equivalent governing documents) agreement of such Loan Party as in effect on the Initial Funding Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, ,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member or equivalent body) authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, effect on the Closing Date,
(C) that the certificate or memorandum and articles of incorporation or organization incorporation, certificate of limited partnership or certificate of formation or other equivalent governing document of such Loan Party have has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished disclosed pursuant to clause (i) above, ,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party on the Initial Funding Date, and and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party; and ;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(ic) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent and the Required Lenders shall have received the results of (x) searches a search of the Uniform Commercial Code (and federal tax Liens) filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to each the Loan Party Parties in the states or other relevant jurisdictions of formation of such Loan Party organization and with respect to such other locations and names listed on the Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (iior similar documents) each are Permitted Liens or have been released, or shall be released upon the funding of the Intellectual Property Security Agreement Loans or the issuance of the initial Letters of Credit hereunder.
(d) The Borrower, Holdings, the Subsidiary Loan Parties, the Administrative Agent and Wilmington Trust Company, as Trustee, shall have been duly executed and delivered by each Loan Party that is to be a party theretothe Joinder, together with (x) certificates, if any, representing the Equity Interests pledged by the Borrower and the Guarantors accompanied by undated stock powers Administrative Agent shall have received fully executed in blank and copies (ywhich may be electronic copies) copies of documents and instruments to be recorded or filed that the Required Lenders may deem, subject to Section 6.13, reasonably necessary to satisfy the Collateral and Guarantee Requirementthereof.
(e) Prior On or prior to or the Initial Borrowing Date and substantially concurrently with the funding incurrence of Loans and the use of such Loans to refinance the extensions of credit under the Existing Credit Facility Agreement on such date, all Indebtedness of Holdings and its subsidiaries under the Existing Credit Facility Agreement shall have been repaid in full, together with all fees and other amounts owing thereon, all commitments under the Existing Credit Facility Agreement shall have been terminated, and all letters of credit issued pursuant to the Existing Credit Facility Agreement (other than the Existing Letters of Credit, which shall be deemed to be Letters of Credit issued under and subject to this Cash Flow Credit Agreement or the ABL Credit Agreement) shall have been terminated and the Administrative Agent shall have received reasonably satisfactory evidence of the Loans on the Initial Funding Date, the IBT Agreement shall be in full force and effectsame.
(f) Immediately after giving effect On the Closing Date and substantially concurrently with the incurrence of Loans on such date, all security interests granted under the “Security Documents” (as defined in the Existing Credit Facility Agreement) shall have been terminated and released pursuant to release documentation reasonably satisfactory to the transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness for borrowed money other than (i) Indebtedness outstanding under this Agreement, (ii) the ABL Facility Indebtedness, (iii) the Tranche B-2 Term Loan Facility Indebtedness, (iv) the UST Tranche B Term Loan Facility Indebtedness and (v) Indebtedness permitted pursuant to Section 7.03Administrative Agent.
(g) The Administrative Agent and the Required Lenders Agents shall have received a solvency certificate, substantially in the form set forth in Exhibit H, from the chief financial officer all fees payable thereto or chief accounting officer to any Lender on or other officer with equivalent duties of the Borrower, or in lieu thereof at the option of the Borrower, an opinion of a nationally recognized valuation firm as prior to the solvency Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out of pocket expenses (on a consolidated basisincluding reasonable and documented fees, out-of-pocket charges and disbursements of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) of required to be reimbursed or paid by the Borrower and its Subsidiaries as of the Initial Funding DateLoan Parties hereunder or under any Loan Document.
(h) The Administrative Agent, Agent shall have received insurance certificates satisfying the Collateral requirements of Section 5.02 of this Cash Flow Credit Agreement.
(i) The Administrative Agent and the Required Lenders shall have received all documentation and other information about the Borrower and the Guarantors required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act, including without limitation, a duly executed W-9 tax form (or such other applicable IRS tax form) of the Borrower, that has been reasonably requested in writing at least five Business Days prior to the Initial Funding Date.
(i) The Administrative Agent and the Required Lenders shall have received a certificate from an officer of the Borrower certifying that since December 31, 2019, there has not occurred any Material Adverse Effect.
(j) The Administrative Agent, the Collateral Agent and the Required Lenders shall have received all applicable fees and other amounts due and payable on or prior to the Initial Funding Date, including, to the extent invoiced at least three Business Days prior to the Initial Funding Date (except an executed Perfection Certificate dated as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including the fees and expenses of legal counsel) required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document on or prior to the Initial Funding Date; provided, that, Borrower hereby acknowledges and agrees that any such amounts which shall be due and payable to the Administrative Agent and the Collateral Agent shall be paid to the Administrative Agent and the Collateral Agent on or prior to the Initial Funding Date regardless of the date when such amounts are invoiced to the BorrowerClosing Date.
(k) To The Senior Lien Intercreditor Agreement and the extent required by Section 6.07, the Administrative Agent Notes Collateral Intercreditor Agreement shall have received evidence that been executed and delivered by the insurance required by Section 6.07 is in effect, for the benefit of the Collateral Agent, as additional insured on behalf of the Secured Parties or as loss payee thereunderrespective parties thereto.
(l) The representations and warranties set forth in Article 5 and in each other Administrative Agent shall have received a certificate from the chief financial officer of Holdings certifying that the Loan Document shall be true and correct in all material respects Parties, on and as of the Initial Funding Date with the same effect as though made on and as of such datea consolidated basis, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, that any such representation and warranty that is qualified by “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to such qualification therein) the Transactions to occur on and as the Closing Date, are solvent. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Initial Funding Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date with specifying its objection thereto and such Lender shall not have made available to the same effect as though made on and as Administrative Agent such Lender’s ratable portion of such date or such earlier date, as applicablethe initial Borrowing (if any).
Appears in 1 contract
Sources: Credit Agreement (Verso Paper Corp.)
Initial Funding Date. The obligation of each UST Tranche A B Term Lender to make the UST Tranche A B Term Loans on the Initial Funding Date shall be subject to the occurrence of the Effective Date and satisfaction (or waiver pursuant to Article 9) of the following conditions precedent:
(a) Each Lender that has requested a Term Note at least two Business Days in advance of the Effective Date shall have received such Term Note executed by the Borrower in favor of such Lender, properly executed by each Responsible Officer of the Borrower, dated as of the Effective Date.
(b) The Administrative Agent and the Required Lenders shall have received, on behalf of themselves, the Collateral Agent and the Lenders, an opinion of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Loan Parties, and (ii) from each local counsel for the Loan Parties listed on Schedule 4.02(b), in each case, dated the Initial Funding Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders and in customary form and substance, and the Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent and the Required Lenders shall have received (i) a copy of the certificate or articles of incorporation or organization or certificate of formation, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (to the extent applicable) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Initial Funding Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Initial Funding Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization or certificate of formation of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party on the Initial Funding Date, and (E) as to the absence of any proceeding for the dissolution or liquidation of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent and the Required Lenders shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to each Loan Party in the states or other jurisdictions of formation of such Loan Party and with respect to such other locations and names listed on the Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search and (ii) each of the Intellectual Property Security Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates, if any, representing the Equity Interests pledged by the Borrower and the Guarantors accompanied by undated stock powers executed in blank and (y) copies of documents and instruments to be recorded or filed that the Required Lenders may deem, subject to Section 6.13, reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(e) Prior to or substantially concurrently with the funding of the Loans on the Initial Funding Date, the IBT Agreement shall be in full force and effect.
(f) Immediately after giving effect to the transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness for borrowed money other than (i) Indebtedness outstanding under this Agreement, (ii) the ABL Facility Indebtedness, (iii) the Tranche B-2 Term Loan Facility Indebtedness, (iv) the UST Tranche B Term Loan Facility Indebtedness and (v) Indebtedness permitted pursuant to Section 7.03.
(g) The Administrative Agent and the Required Lenders shall have received a solvency certificate, substantially in the form set forth in Exhibit H, from the chief financial officer or chief accounting officer or other officer with equivalent duties of the Borrower, or in lieu thereof at the option of the Borrower, an opinion of a nationally recognized valuation firm as to the solvency (on a consolidated basis) of the Borrower and its Subsidiaries as of the Initial Funding Date.
(h) The Administrative Agent, the Collateral Agent and the Required Lenders shall have received all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, including without limitation, a duly executed W-9 tax form (or such other applicable IRS tax form) of the Borrower, that has been reasonably requested in writing at least five Business Days prior to the Initial Funding Date.
(i) The Administrative Agent and the Required Lenders shall have received a certificate from an officer of the Borrower certifying that since December 31, 2019, there has not occurred any Material Adverse Effect.
(j) The Administrative Agent, the Collateral Agent and the Required Lenders shall have received all applicable fees and other amounts due and payable on or prior to the Initial Funding Date, including, to the extent invoiced at least three Business Days prior to the Initial Funding Date (except as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including the fees and expenses of legal counsel) required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document on or prior to the Initial Funding Date; provided, that, Borrower hereby acknowledges and agrees that any such amounts which shall be due and payable to the Administrative Agent and the Collateral Agent shall be paid to the Administrative Agent and the Collateral Agent on or prior to the Initial Funding Date regardless of the date when such amounts are invoiced to the Borrower.
(k) To the extent required by Section 6.07, the Administrative Agent shall have received evidence that the insurance required by Section 6.07 is in effect, for the benefit of the Collateral Agent, as additional insured on behalf of the Secured Parties or as loss payee thereunder.
(l) The representations and warranties set forth in Article 5 and in each other Loan Document shall be true and correct in all material respects on and as of the Initial Funding Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, that any such representation and warranty that is qualified by “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to such qualification therein) on and as of the Initial Funding Date with the same effect as though made on and as of such date or such earlier date, as applicable.
Appears in 1 contract