Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that: (a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date: (i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and (ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender; (b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower; (c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied: (i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date); (ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default; (iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base; (iv) no Borrowing Base Deficiency exists or would result from such Advance; (v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; (vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and (vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount. (d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied: (i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date); (ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base; (iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount; (iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and (v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default; (e) With respect to any Transaction, the Reinvestment Period End Date shall not have occurred and the Termination Date shall not have occurred; (f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2; (g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent; (h) With respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed or emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date; (i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account; (j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and (k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 4 contracts
Samples: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Specialty Lending Corp)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses clause (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;.
(e) (i) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Seller shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (a) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off DateAdvance Date with respect to any Loan;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofSeller, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Dechert LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) Prior to the initial Advance, the Administrative Agent shall have received evidence satisfactory to it that the Minimum Equity Amount has been contributed to the Borrower by the Equityholders. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 4 contracts
Samples: Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a Loan Schedule Checklist listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent), no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses clause (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date); and
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;.
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(ei) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Equityholder shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent and (as applicable) the Collateral Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Agent, the Custodian, the Securities Intermediary and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the LendersLenders (other than any Defaulting Lender), the Collateral Agent Agent, the Custodian and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (a) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative Agent and the Collateral Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent Custodian within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off DateAdvance Date with respect to any Loan;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofEquityholder, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Dechert LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) Prior to the initial Advance, the Administrative Agent shall have received evidence satisfactory to it that the Minimum Equity Amount has been contributed to the Borrower by the Equityholder and that the Equity Amount is at least equal to the Minimum Equity Amount. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 3 contracts
Samples: Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) unless an assignment agreement is being delivered pursuant to the Underlying Instruments, if a Loan is being acquired with such Advance, unless such Loan is being originated by the Borrower, a certificate of assignment in the form of Exhibit F E (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 p.m. on the Business Day prior to any such reinvestmentReinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (fg) and the conditions precedent in clause (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default (other than a Borrowing Base Deficiency that is cured by any such purchase, substitution or sale) or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do a Borrowing Base Deficiency would not exceed the Borrowing Baseoccur;
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses clause (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (fg) and the conditions precedent in clause (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default (other than a Borrowing Base Deficiency that is cured by such purchase, substitution or sale), an Event of Default or a Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, a Borrowing Base Deficiency would not occur;
(iii) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);; and
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iiiiv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;.
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(ei) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) [Reserved];
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) [Reserved];
(i) The Borrower or the Collateral Manager shall have paid all fees then required received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (B) of the definition of “Eligible Loan,” of the Loans to be paid added to the Collateral; and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in
(j) In connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(h) With initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 3:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and and, if any Loans are closed in escrow, a certificate (in the form of Exhibit JH) from the closing attorneys of such Loan certifying confirming the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Advance Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement)any Loan. The failure of any of the foregoing conditions precedent (which have not been waived by the Administrative Agent) to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 2 contracts
Samples: Loan and Security Agreement (Stepstone Private Credit Fund LLC), Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Loan Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Loan Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) ’s behalf shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no Custodian), by not later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
deadline set forth in Section 2.2(b) (i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with or such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information shorter period as may be reasonably requested agreed to by the Administrative Agent and each Lender;), a Funding Notice substantially in the form of Exhibit A-1 and a Borrowing Base Certificate.
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) ’s behalf shall have delivered to the Administrative AgentAgent (with a copy to the Collateral Custodian), no later than 3:00 12:00 p.m. (New York City time) on the Business Day prior to any date of such reinvestmentTransaction, a Reinvestment Notice substantially in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager and on behalf of the Borrower;’s behalf.
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date correct, and (B) if the Borrower and the Collateral Manager shall have certified in the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfiedsatisfied (other than such conditions precedent (i) subject to the judgment or satisfaction of the Administrative agent or any Lender or (ii) otherwise waived) and shall thereby be deemed to have certified that:
(i) the The representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true and correct in all respects) on and as of such day each Advance Date (other than any representation and warranty that is expressly made as of a another specific date which were true and correct in all material respects as of such date);
(ii) no No event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default, Default, Change of Control or Collateral Manager Termination Event;
(iii) on On and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do does not exceed the Availability (or, to the extent permitted under Section 2.14, that any existing Borrowing Base;Base Deficiency is reduced to zero); and
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no No Applicable Law shall prohibit or enjoin the making of such Advance by any Lender or the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any TransactionLoan Advance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Revolving Period End Date shall not have occurred and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(e) On the date of such Transaction, the Administrative Agent shall have received such other approvals, opinions or documents as the Administrative Agent may reasonably require;
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent (and, if applicable, to Collateral Custodian) all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, including all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Custodian, the Document Custodian and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Custodian, the Document Custodian and the Administrative Agent, in each case to the extent an invoice therefor is furnished to the Borrower no later than three (3) Business Days prior to the date of such transactions;
(h) With respect to In connection with each Transaction, unless otherwise waived by the acquisition of any LoanAdministrative Agent in its sole discretion, (i) the Borrower (or the Collateral Manager on its behalf) shall have delivered to the Collateral Agent Document Custodian (with a copy to the Administrative Agent), no later than 12:00 p.m. 11:00 a.m. (New York City time) on (x) the related Cutdate proceeds are disbursed from the Pre-Off Date, a faxed or emailed copy of the duly executed original promissory notes for each such Funded Loan in respect of which a promissory note is issued Account to acquire any Pre-Funded Loan (and, in the case of any Noteless Pre-Funded Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate or (y) in the form case of Exhibit Jall other Loans, the Advance Date, (a) from a Loan Checklist, and a copy of the closing attorneys of loan agreement, credit agreement, indenture or other principal agreement pursuant to which the Loan has been issued or created with respect to each Loan proposed to be pledged as Collateral by the Borrower in connection with such Transaction; provided that if such Loan certifying is not yet closed at the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents time it is proposed to be in the possession of the Collateral Agent within pledged as Collateral, (x) with respect an unexecuted copy of a recent draft of such agreement shall be provided prior to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Advance Date and (y) otherwise, five an executed copy of such agreement shall be provided within three (53) Business Days following any related Advance Date; provided further, that with respect to any Pre-Funded Loan, a draft of the Underlying Instruments pursuant to which such Loan will be issued or created shall have been delivered to the Document Custodian (with a copy to the Administrative Agent) prior to the related CutLoan Advance to the Pre-Off DateFunded Loan Account and (b) in the case of a Noteless Loan, a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Borrower and (ii) within three (3) Business Days following (x) the date proceeds are disbursed from the Pre-Funded Loan Account to acquire any Pre-Funded Loan (in the case of any Pre-Funded Loan), or (y) any related date of such Transaction with respect to any other Loan, the Borrower shall deliver all other Required Loan Documents with respect to each Loan pledged as Collateral by the Borrower in connection with such Transaction;
(i) Prior to the initial Advance, the The Borrower shall have depositeddelivered to the Administrative Agent an Officer’s Certificate (which may be part of the applicable Borrower’s Notice) in form and substance reasonably satisfactory to the Administrative Agent certifying that each of the foregoing conditions precedent has been satisfied (other than such conditions precedent that shall have been, as of the date of such Transaction, expressly waived with respect to such Transaction in writing by the Administrative Agent and the Lenders (or caused to be deposited, $50,000 into the Expense Reserve Account;required portion thereof) in accordance with the terms of this Agreement).
(j) On each Cut-Off Date and each Prior to the funding of the initial Advance Datehereunder, the Seller Administrative Agent shall be deemed to have certified that received the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as executed legal opinion or opinions of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold Dechert LLP, counsel to the Borrower from the Seller andLoan Parties, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a covering true sale opinion with respect to such Loans, in each casematters, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfieddiscretion.
Appears in 2 contracts
Samples: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.), Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) Servicer shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than, (i) if the Advance is denominated in Dollars, no later than 2:00 3:00 p.m. on the proposed Funding Date, (ii) if the Advance is denominated in GBP, no later than 3:00 p.m. at least five (5) Business Day immediately Days prior to the related proposed Funding Date:Date and (iii) if the Advance is denominated in an Available Currency other than Dollars or GBP, no later than 3:00 p.m. at least three (3) Business Days prior to the Funding Date (or, in each case, such shorter time period as is acceptable to the Administrative Agent):
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower a Loan Party in connection with such Transaction; and
(ii) unless an assignment agreement is being delivered pursuant to the Underlying Instruments, if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F E (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) Servicer shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestmentReinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager Servicer on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower each Loan Party shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral ManagerServicer’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager Servicer under the Transaction Documents, clause (fg) and the conditions precedent in clause (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default (other than a Borrowing Base Deficiency that is cured by any such purchase, substitution or sale) or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iv) no a Borrowing Base Deficiency exists or would result from such Advance;
not occur (v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) or, to the extent applicable to the requested Transaction and with respect to the Borrowerpermitted under Section 2.14(b), no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loansany Borrowing Base Deficiency is reduced); and
(viiiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager Servicer shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager Servicer shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses clause (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (fg) and the conditions precedent in clause (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default (other than a Borrowing Base Deficiency that is cured by such purchase, substitution or sale), an Event of Default or a Servicer Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, a Borrowing Base Deficiency would not occur (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);; and
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iiiiv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;.
(e) (i) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) [Reserved];
(g) The Borrower and Collateral Manager Servicer shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) [Reserved];
(i) The Borrower or the Servicer shall have paid all fees then required received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (B) of the definition of “Eligible Loan,” of the Loans to be paid added to the Collateral; and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in
(j) In connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(h) With initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and and, if any Loans are closed in escrow, a certificate (in the form of Exhibit JH) from the closing attorneys of such Loan certifying confirming the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent Custodian within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Advance Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement)any Loan. The failure of any of the foregoing conditions precedent (which have not been waived by the Administrative Agent) to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 2 contracts
Samples: Loan and Security Agreement (Blue Owl Credit Income Corp.), Loan and Security Agreement (Owl Rock Core Income Corp.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any Transaction, the Reinvestment Period End Date shall not have occurred and the Termination Date shall not have occurred;
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(h) [Reserved]
(i) With respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed or emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(ij) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(jk) [Reserved]
(l) [Reserved]
(m) [Reserved]
(n) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(ko) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Dechert LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k3.2(o), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 2 contracts
Samples: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Strategic Income Corp)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) 2.14 and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) 2.15 (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) Servicer shall have delivered to the Administrative Agent (with a copy to the Collateral Agent Trustee and each Lender) no later than 2:00 p.m. 12:00 noon (Charlotte, North Carolina time), on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing Tape and such additional information as may be reasonably requested by the Administrative Agent and each Lender with respect to each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment an Approval Notice in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may A-6 for any Loans proposed to be reasonably requested acquired by the Administrative Agent and each LenderBorrower in connection with the Transaction;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) 2.14 and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b)2.15, the Borrower (or the Collateral Manager on behalf of the Borrower) Servicer shall have delivered to the Administrative Agent, no later than 3:00 p.m. 1:00 pm on the Business Day prior to any of such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and A-3, an Approval Notice in the form of Exhibit A-6 (for any Loan added to the Collateral on the related Funding Date), a Borrowing Base Certificate, executed by the Collateral Manager Servicer on behalf of the Borrower, and a Loan Tape;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that all conditions precedent to the requested Transaction have been satisfied and each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfieddate:
(i) the The representations and warranties contained in Section 4.1 4.1, Section 4.2 and Section 4.2 4.3 are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date);
(ii) No event has occurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes an Event of Default or a Default unless such Transaction is a Class B Advance being requested to cure a Class A Borrowing Base Deficiency;
(iii) On and as of such day, immediately after giving effect to such Transaction, the Class A Advances Outstanding do not exceed the Class A Borrowing Base (or, to the extent permitted under Section 2.15, any Class A Borrowing Base Deficiency is reduced);
(iv) On and as of such day, immediately after giving effect to such Transaction, the Class B Advances Outstanding do not exceed the Class B Borrowing Base (or, to the extent permitted under Section 2.15, any Class B Borrowing Base Deficiency is reduced);
(v) No Applicable Law shall prohibit or enjoin the proposed Advance, Reinvestment of Principal Collections or acquisition of Loans; and
(vi) (A) the Class A Advances Outstanding do not exceed the Class A Facility Amount and (B) the Class B Advances Outstanding do not exceed the Class B Facility Amount.
(d) On the date of such Transaction, the Servicer shall be deemed to have certified that all conditions precedent to the requested Transaction have been satisfied and each of the following statements shall be true and correct as of such date:
(i) With respect to the Servicer and the Originator, no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or Default, an Event of Default or a Servicer Default, unless such Transaction is a Class B Advance being requested to cure a Class A Borrowing Base Deficiency, a Default or a Servicer Default;
(iiiii) on On and as of such day, immediately after giving effect to such Transaction, the Class A Advances Outstanding do not exceed the Class A Borrowing BaseBase (or, to the extent permitted under Section 2.15, any Class A Borrowing Base Deficiency is reduced);
(iviii) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on On and as of such day, immediately after giving effect to such Transaction, the Class B Advances Outstanding do not exceed the Facility Amount.Class B Borrowing Base (or, to the extent permitted under Section 2.15, any Class B Borrowing Base Deficiency is reduced);
(div) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Class A Advances Outstanding do not exceed the Borrowing Base;
Class A Facility Amount and (iiiB) on and as of such day, immediately after giving effect to such Transaction, the Class B Advances Outstanding do not exceed the Class B Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;.
(e) With Except as provided in Section 2.2(f), (i) with respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14, the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) The On the date of such Transaction, unless such Transaction is a Class B Advance being requested to cure a Class A Borrowing Base Deficiency, the Administrative Agent shall have received such other approvals, opinions or documents as the Administrative Agent may reasonably require;
(g) Unless such Transaction is a Class B Advance being requested to cure a Class A Borrowing Base Deficiency, the Borrower and Collateral Manager Servicer shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Unless such Transaction is a Class B Advance being requested to cure a Class A Borrowing Base Deficiency, the Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Trustee and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Trustee and the Administrative Agent;
(hi) With respect The Borrower and the Servicer shall have received a copy of a notice substantially in the form of Exhibit A-6 attached hereto, executed by the Controlling Lender, evidencing its approval in accordance with clause (B) of the definition of “Eligible Loan,” of any Loans to be added to the acquisition Collateral;
(j) In the case of any Advance, reinvestment of Principal Collections or any substitution of a Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed cause any assignment or emailed copy of the duly executed original promissory notes Transfer Document for each such any Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent Trustee within two (x2) with respect to signed copies to signed originals or copies of Business Days after any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect all other Required Loan Documents (including any UCCs included in the Required Loan Documents) to which unsigned copies have been delivered be in connection with the following clause (y), possession of the Trustee within seven (7) Business Days of the after any related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Funding Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To No Applicable Law shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the extent any Loans in connection with any making of such Advance are being sold to the Borrower from the Seller and, prior to such sale, by any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made Lender in accordance with the facts described in such opinion and pursuant to the Sale Agreement)provisions hereof or any other transaction contemplated herein. The failure of the Borrower (or the Servicer on behalf of the Borrower) to satisfy any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (NewStar Financial, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, A‑1 and a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 A‑3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses clause (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;.
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(ei) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Seller shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (a) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off DateAdvance Date with respect to any Loan;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofSeller, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Dechert LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) Prior to the initial Advance, the Administrative Agent shall have received evidence satisfactory to it that the Minimum Equity Amount has been contributed to the Borrower by the Equityholders. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Crescent Capital BDC, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (fg) and the conditions precedent in clauses (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (fg) and the conditions precedent in clauses (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any Transaction, the Reinvestment Period End Date shall not have occurred and the Termination Date shall not have occurred;
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(h) [Reserved]
(i) With respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed or emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(ij) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(jk) [Reserved]
(l) [Reserved]
(m) [Reserved]
(n) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(ko) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Dechert LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k3.2(o), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Fifth Street Senior Floating Rate Corp.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Loan Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Loan Advance, the Borrower (or the Collateral Manager on Bxxxxxxx’s behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Administrator), by not later than the deadline set forth in Section 2.2(b) (or such shorter period as may be agreed to by the Administrative Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) ), a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a with respect to each Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;.
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative AgentAgent (with a copy to the Collateral Custodian and the Collateral Administrator), no later than 3:00 12:00 p.m. (New York City Time) on the Business Day prior to any date of such reinvestmentTransaction, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager and on behalf of the Borrower;Bxxxxxxx’s behalf.
(c) On the date of such Transaction (A) the following shall be true, correct and complete, and the Borrower and the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if in the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfiedsatisfied and shall thereby be deemed to have certified that:
(i) the The representations and warranties contained in Section 4.1 and Section 4.2 are true true, correct and correct complete in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true in all respects) on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is expressly made as of a another specific date which were true, correct, and complete as of such date);
(ii) no No event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on On and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do does not exceed the Availability (or, to the extent permitted under Section 2.14, that any existing Borrowing Base;Base Deficiency is reduced); and
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no No Applicable Law shall prohibit or enjoin the making of such Advance by any Lender or the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any TransactionLoan Advance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Revolving Period End Date shall not have occurred and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(e) [Reserved];
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent (and, if applicable, to Collateral Custodian and the Collateral Administrator) all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, including all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent;
(h) With respect to [Reserved];
(i) In connection with each Transaction, unless otherwise waived by the acquisition of any LoanAdministrative Agent in its sole discretion, (i) the Borrower (or the Collateral Manager on its behalf) shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative AgentAgent and the Collateral Administrator), no later than 12:00 p.m. 11:00 a.m. (New York City Time) on the related Cut-Off Datedate of such Transaction, (a) a faxed or emailed copy Loan Checklist with respect to each Loan proposed to be pledged as Collateral by the Borrower in connection with such Transaction together with the Required Loan Documents described in clause (b)(i) of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued definition thereof, (and, b) in the case of any a Noteless Loan (other than an Effective Date Participation Interest), a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Borrower and an undated transfer or assignment document or instrument relating to such Noteless Loan, signed by the Borrower, as assignor, and the administrative agent (only in the event such administrative agent is an Affiliate of the Borrower) but not dated and not specifying an assignee and (c) for each Effective Date Participation Interest, a fully executed assignment master participation agreement), in form and if substance reasonably satisfactory to the Administrative Agent, which duly effects and evidences each such Participation Interest and evidence of payment or waiver of any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of fees associated with assigning any such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoingand (ii) within three (3) Business Days following any related Advance Date with respect to any Loan, the Borrower shall cause the Loan Checklist and the deliver all other Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required each Loan pledged as Collateral by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered Borrower in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Accountsuch Transaction;
(j) On The Borrower shall have delivered to the Administrative Agent an Officer’s Certificate (which may be part of the applicable Borrower’s Notice) in form and substance reasonably satisfactory to the Administrative Agent certifying that each Cut-Off Date and each Advance Date, of the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have foregoing conditions precedent has been made on such day satisfied (other than such conditions precedent (i) subject to the judgment or satisfaction of the Administrative Agent or any representation and warranty that is made as of a specific dateLender or (ii) otherwise waived); and
(k) To the extent any Loans The Borrower is in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance compliance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to Minimum Credit Enhancement Amount Test as evidenced by a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfiedBorrowing Base Certificate.
Appears in 1 contract
Conditions Precedent to All Advances and Acquisitions of Loans. Each Loan Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Loan Advance, the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Administrator), by not later than the deadline set forth in Section 2.2(b) (or such shorter period as may be agreed to by the Administrative Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) ), a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a with respect to each Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;.
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative AgentAgent (with a copy to the Collateral Custodian and the Collateral Administrator), no later than 3:00 12:00 p.m. (New York City Time) on the Business Day prior to any date of such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager and on behalf of the Borrower;’s behalf.
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date correct, and (B) if the Borrower and the Collateral Manager shall have certified in the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfiedsatisfied and shall thereby be deemed to have certified that:
(i) the The representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true in all respects) on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is expressly made as of a another specific date which were true, correct, and complete as of such date);; [FS Investment] Loan and Security Agreement
(ii) no No event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on On and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do does not exceed the Availability (or, to the extent permitted under Section 2.14, that any existing Borrowing Base;Base Deficiency is reduced); and
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no No Applicable Law shall prohibit or enjoin the making of such Advance by any Lender or the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any TransactionLoan Advance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Revolving Period End Date shall not have occurred and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(e) [Reserved];
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent (and, if applicable, to Collateral Custodian and the Collateral Administrator) all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, including all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent;
(h) With respect to [Reserved];
(i) In connection with each Loan Advance, unless otherwise waived by the acquisition of any LoanAdministrative Agent in its sole discretion, (i) the Borrower (or the Collateral Manager on its behalf) shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative AgentAgent and the Collateral Administrator), no later than 12:00 p.m. 11:00 a.m. (New York City Time) on the related Cut-Off Advance Date, (a) a faxed or emailed copy Loan Checklist with respect to each Loan proposed to be pledged as Collateral by the Borrower in connection with such Transaction together with the Required Loan Documents described in clause (b)(i) of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued definition thereof, (and, b) in the case of any a Noteless Loan (other than an Effective Date Participation Interest), a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Borrower and an undated transfer or assignment document or instrument relating to such Noteless Loan, signed by the Borrower, as assignor, and the administrative agent (only in the event such administrative agent is an Affiliate of the Borrower) but not dated and not specifying an assignee and (c) for each Effective Date Participation Interest, a fully executed assignment master [FS Investment] Loan and Security Agreement participation agreement), in form and if substance reasonably satisfactory to the Administrative Agent, which duly effects and evidences each such Participation Interest and evidence of payment or waiver of any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of fees associated with assigning any such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoingand (ii) within three (3) Business Days following any related Advance Date with respect to any Loan, the Borrower shall cause the Loan Checklist and the deliver all other Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required each Loan pledged as Collateral by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered Borrower in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Accountsuch Transaction;
(j) On The Borrower shall have delivered to the Administrative Agent an Officer’s Certificate (which may be part of the applicable Borrower’s Notice) in form and substance reasonably satisfactory to the Administrative Agent certifying that each Cut-Off Date and each Advance Date, of the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have foregoing conditions precedent has been made on such day satisfied (other than such conditions precedent (i) subject to the judgment or satisfaction of the Administrative Agent or any representation and warranty that is made as of a specific dateLender or (ii) otherwise waived); and
(k) To the extent any Loans The Borrower is in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance compliance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to Minimum Credit Enhancement Amount Test as evidenced by a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfiedBorrowing Base Certificate.
Appears in 1 contract
Conditions Precedent to All Advances and Acquisitions of Loans. Each Loan Advance and Swingline Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and ), each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) and each acquisition of Loans with amounts on deposit in the Operating Account (each, a “Transaction”) shall be subject to the further conditions precedent that:: [Willow Tree BDC] Amended and Restated Loan, Security and Collateral Management Agreement #506694681
(a) With respect to any Loan Advance or Swingline Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) ’s behalf shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian), by not later than the deadline set forth in Section 2.2(c) (or such shorter period as may be agreed to by the Administrative Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) ), a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate updated to the date such Transaction is requested and a Loan Schedule listing each Loangiving pro forma effect to such Transaction, if any, proposed to be acquired executed by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in Collateral Manager and the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;Borrower.
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) ’s behalf shall have delivered to the Administrative AgentAgent (with a copy to the Collateral Custodian), no later than 3:00 12:00 p.m. on the Business Day prior to any date of such reinvestmentTransaction, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, updated to the date such Transaction is requested and giving pro forma effect to such Transaction, executed by the Collateral Manager and on behalf of the Borrower;’s behalf.
(c) On [Reserved].
(d) Other than with respect to an acquisition of Loans with funds on deposit in the Operating Account, on the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date correct, and (B) if the Borrower and the Collateral Manager shall have certified in the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfiedsatisfied (other than such conditions precedent (i) that are, by their express terms, subject to the judgment or satisfaction of the Administrative Agent or any Lender or (ii) that shall have been, as of the date of such Transaction, expressly waived with respect to such Transaction in writing by the Administrative Agent and the Lenders (or the required portion thereof) in accordance with the terms of this Agreement) and shall thereby be deemed to have certified that:
(i) the The representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true in all respects) on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is expressly made as of a another specific date which were true, correct, and complete as of such date);
(ii) no No event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default, Default, Change of Control or Collateral Manager Termination Event;
(iii) on On and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do does not exceed the Availability (or, to the extent permitted under Section 2.14, that any existing Borrowing Base;Base Deficiency is reduced to zero); and [Willow Tree BDC] Amended and Restated Loan, Security and Collateral Management Agreement #506694681
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and To the addition to knowledge of the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the BorrowerManager, no Applicable Law shall prohibit or enjoin the making of such Advance by any Lender or the proposed Reinvestment of Principal Collections or acquisition of Loans; and
Loans (vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amountif any).
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any TransactionLoan Advance or Swingline Advance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Revolving Period End Date shall not have occurred and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) [Reserved];
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent (and, if applicable, to Collateral Custodian) all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, including all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Custodian, the Collateral Administrator, the Securities Intermediary and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable and documented attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Custodian, the Collateral Administrator, the Securities Intermediary and the Administrative Agent;
(hi) With respect to the acquisition of any Loan, the [Reserved]; and
(j) The Borrower shall have delivered to the Collateral Administrative Agent an Officer’s Certificate (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed or emailed copy which may be part of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit Japplicable Borrower’s Notice) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable reasonably satisfactory to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed certifying that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any each of the foregoing conditions precedent has been satisfied (other than such conditions precedent (i) that are, by their express terms, subject to be satisfied the judgment or satisfaction of the Administrative Agent or any Lender or (ii) that shall have been, as of the date of such Transaction, expressly waived with respect to such Transaction in respect of any Advance shall give rise to a right of writing by the Administrative Agent and the applicable Lender, which right may be exercised at any time on Lenders (or the demand required portion thereof) in accordance with the terms of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfiedthis Agreement).
Appears in 1 contract
Samples: Loan, Security and Collateral Management Agreement (Willow Tree Capital Corp)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 3:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a Loan Schedule listing each LoanCertificate, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;; USActive 57310676.6USActive 60324964.3
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any date of such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause clauses (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and;
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount; and
(vi) the amounts on deposit in the Unfunded Exposure Account are at least equal to the Unfunded Exposure Equity Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;Base (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced); -67- USActive 57310676.6USActive 60324964.3
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date); and
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;.
(e) (i) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) Prior to the initial acquisition of any Loans by the Borrower from the Equity Investor after the A&R Effective Date, the Administrative Agent, the Collateral Manager and the Collateral Agent shall have received, with a counterparty for each Lender, (x) the executed legal opinion of Dechert LLP, counsel to the Borrower, covering true sale matters and (y) a Purchase Agreement specific to the Equity Investor, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion;
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent and the Collateral Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the LendersLenders (other than any Defaulting Lender), the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (a) of the definition of “Eligible Loan,” of each Loan to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent Custodian within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Advance Date and with respect to which unsigned copies have been delivered in connection with the following to pursuant to clause (y), seven the later of ten (710) Business Days and fifteen (15) days of the related Cut-Off Advance Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold Prior to the Borrower from initial Advance after the Seller andA&R Effective Date, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (shall have received evidence satisfactory to it being acknowledged and agreed that the opinion delivered by Milbank LLP on Effective Equity of the Closing Date Borrower is acceptable equal to or greater than the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement)Minimum Equity Amount. USActive 57310676.6USActive 60324964.3 The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Nuveen Churchill Direct Lending Corp.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause clauses (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred and is continuing, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;.
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(ei) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Seller shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Controlling Lender, evidencing the approval of the Controlling Lender, in its sole discretion in accordance with clause (B) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and and, if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying confirming the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent Custodian within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off Date;
(i) Prior Advance Date with respect to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date)Loan; and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofSeller, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Xxxx Xxxxxxxx LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) solely with respect to the first Transaction, the Borrower and the Administrative Agent shall have received the executed legal opinion or opinions of Xxxx Xxxxxxxx LLP, counsel to the Borrower, the Seller and to the Collateral Manager, covering (i) and non-consolidation of the Borrower with the Seller and (ii) true sale of the Loans from the Seller to the Borrower, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. 10:00 a.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause clauses (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred and is continuing, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;.
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(ei) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Seller shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (B) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and and, if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying confirming the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent Custodian within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off Date;
(i) Prior Advance Date with respect to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date)Loan; and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofSeller, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Xxxx Xxxxxxxx LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) solely with respect to the first Transaction, the Borrower and the Administrative Agent shall have received the executed legal opinion or opinions of Xxxx Xxxxxxxx LLP, counsel to the Borrower, the Seller and to the Collateral Manager, covering (i) and non- consolidation of the Borrower with the Seller and (ii) true sale of the Loans from the Seller to the Borrower, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 3:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, A‑1 and a Borrowing Base Certificate and a Loan Schedule listing each LoanCertificate, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any date of such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 A‑3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause clauses (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
; (iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
Base (iv) no or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific datereduced);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any Transaction, the Reinvestment Period End Date shall not have occurred and the Termination Date shall not have occurred;
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(h) With respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed or emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Nuveen Churchill BDC INC.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. 10:00 a.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause clauses (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred and is continuing, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;.
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(ei) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Seller shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Controlling Lender, evidencing the approval of the Controlling Lender, in its sole discretion in accordance with clause (B) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and and, if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying confirming the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent Custodian within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off Date;
(i) Prior Advance Date with respect to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date)Loan; and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofSeller, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Xxxx Xxxxxxxx LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) solely with respect to the first Transaction, the Borrower and the Administrative Agent shall have received the executed legal opinion or opinions of Xxxx Xxxxxxxx LLP, counsel to the Borrower, the Seller and to the Collateral Manager, covering (i) and non-consolidation of the Borrower with the Seller and (ii) true sale of the Loans from the Seller to the Borrower, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and;
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount; and
(vi) the amounts on deposit in the Unfunded Exposure Account are (or, after giving pro forma effect to such Transaction, will be) at least equal to the Unfunded Exposure Equity Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses clause (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;.
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(ei) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Seller shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (a) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off DateAdvance Date with respect to any Loan;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofSeller, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Dechert LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) Prior to the initial Advance, the Administrative Agent shall have received evidence satisfactory to it that the Minimum Equity Amount has been contributed to the Borrower by the Equityholders. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Crescent Capital BDC, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Loan Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and and, each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) and each acquisition of Loans with amounts on deposit in the Operating Account (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Loan Advance, the Borrower (or the Collateral Manager on Bxxxxxxx’s behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Administrator), by not later than the deadline set forth in Section 2.2(b) (or such shorter period as may be agreed to by the Administrative Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) ), a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a with respect to each Loan Schedule listing each Loan, if any, proposed to be acquired acquiredupdated to the date such Transaction is requested and giving pro forma effect to such Transaction, executed by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;.
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative AgentAgent (with a copy to the Collateral Custodian and the Collateral Administrator), no later than 3:00 12:00 p.m. (New York City Time) on the Business Day prior to any date of such reinvestmentTransaction, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base CertificateCertificate updated to the date such Transaction is requested and giving pro forma effect to such Transaction, executed by the Collateral Manager and on behalf of the Bxxxxxxx’s behalfthe Borrower;.
(c) On Other than with respect to an acquisition of Loans with funds on deposit in the Operating Account, on the date of such Transaction (A) the following shall be true, correct and complete, and the Borrower and the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if in the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfiedsatisfied and shall thereby be deemed to have certified that:
(i) the The representations and warranties contained in Section 4.1 and Section 4.2 are true true, correct and correct complete in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true in all respects) on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is expressly made as of a another specific date which were true, correct, and complete as of such date);
(ii) no No event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on On and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do does not exceed the Availability (or, to the extent permitted under Section 2.14, that any existing Borrowing Base;Base Deficiency is reduced); and
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no No Applicable Law shall prohibit or enjoin the making of such Advance by any Lender or the proposed Reinvestment of Principal Collections or acquisition of Loans; and
Loans (vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amountif any).
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any TransactionLoan Advance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Revolving Period End Date shall not have occurred and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(e) [Reserved];
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent (and, if applicable, to Collateral Custodian and the Collateral Administrator) all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, including all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent;
(h) With respect to [Reserved];
(i) In connection with each TransactionLoan Advance the proceeds of which are deposited into the applicable Pre-Funded Loan Account in connection with the acquisition of any a Pre-Funded Loan, unless otherwise waived by the Administrative Agent in its sole discretion, (i) the Borrower (or the Collateral Manager on its behalf) shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative Agent)Agent and the Collateral Administrator)via a Platform, no later than 12:00 p.m. 11:00 a.m. (New York City Time) on the related Cut-Off Datedate of such Transaction, (a) a faxed or emailed copy Loan Checklist with respect to each Loan proposed to be pledged as Collateral by the Borrower in connection with such Transaction together with the Required Loan Documents described in clause (b)(i) of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued definition thereof, (and, b) in the case of any a Noteless Loan (other than an Effective Date Participation Interest), a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Borrower and an undated transfer or assignment document or instrument relating to such Noteless Loan, signed by the Borrower, as assignor, and the administrative agent (only in the event such administrative agent is an Affiliate of the Borrower) but not dated and not specifying an assignee and (c) for each Effective Date Participation Interest, a fully executed assignment master participation agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable reasonably satisfactory to the Administrative Agent Agent, which duly effects and evidences each such Participation Interest and evidence of payment or waiver of any fees associated with assigning any such Loan and (ii) within three (3) Business Days following any related Advance Date with respect to any Loan, the Borrower shall deliver all other Required Loan Documents with respect to each Loan pledged as Collateral by the Borrower in its reasonable discretion (it being acknowledged and agreed that connection with such Transaction;Loan Advance, a draft of the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k)loan agreement, so long as such sales are made in accordance with the facts described in such opinion and credit agreement, indenture or other principal agreement pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to which such Pre-Funded Loan will be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.issued or created;
Appears in 1 contract
Conditions Precedent to All Advances and Acquisitions of Loans. Each Loan Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) 1. With respect to any Loan Advance, the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Administrator), by not later than the deadline set forth in Section 2.2(b) (or such shorter period as may be agreed to by the Administrative Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) ), a Funding Notice in the form of Exhibit A-1, A‑1 and a Borrowing Base Certificate and a with respect to each Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and.
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) 2. With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative AgentAgent (with a copy to the Collateral Custodian and the Collateral Administrator), no later than 3:00 12:00 p.m. (New York City Time) on the Business Day prior to any date of such reinvestmentreinvestmentTransaction, a Reinvestment Notice in the form of Exhibit A-3 A‑3 and a Borrowing Base Certificate, executed by the Collateral Manager and on behalf of the Borrower;’s behalf.
(c) 3. On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and, correct and correct as of such date complete, and (B) if the Borrower and the Collateral Manager shall have certified in the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfiedsatisfied and shall thereby be deemed to have certified that:
(i) the a. The representations and warranties contained in Section 4.1 and Section 4.2 are true and, correct and correct complete in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true in all respects) on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is expressly made as of a another specific date which were true, correct, and complete as of such date);
(ii) no b. No event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on c. On and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do does not exceed the Borrowing Base;
Availability (iv) no or, to the extent permitted under Section 2.14, that any existing Borrowing Base Deficiency exists or would result from such Advance;is reduced); and
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no d. No Applicable Law shall prohibit or enjoin the making of such Advance by any Lender or the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any TransactionLoan Advance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Revolving Period End Date shall not have occurred and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) 5. [Reserved];
6. The Borrower and Collateral Manager shall have delivered to the Administrative Agent (and, if applicable, to Collateral Custodian and the Collateral Administrator) all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, including all deliveries required by Section 2.2;
(g) 7. The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent;
8. [Reserved];
9. In connection with each Loan AdvanceTransaction, unless otherwise waived by the Administrative Agent in its sole discretion, (hi) With respect to the acquisition of any Loan, the Borrower (or the Collateral Manager on its behalf) shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative AgentAgent and the Collateral Administrator), no later than 12:00 p.m. 11:00 a.m. (New York City Time) on the related Cut-Off DateAdvance Datedate of such Transaction, (a) a faxed or emailed copy Loan Checklist with respect to each Loan proposed to be pledged as Collateral by the Borrower in connection with such Transaction together with the Required Loan Documents described in clause (b)(i) of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued definition thereof, (and, b) in the case of any a Noteless Loan (other than an Effective Date Participation Interest), a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Borrower and an undated transfer or assignment document or instrument relating to such Noteless Loan, signed by the Borrower, as assignor, and the administrative agent (only in the event such administrative agent is an Affiliate of the Borrower) but not dated and not specifying an assignee and (c) for each Effective Date Participation Interest, a fully executed assignment master participation agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable reasonably satisfactory to the Administrative Agent, which duly effects and evidences each such Participation Interest and evidence of payment or waiver of any fees associated with assigning any such Loan and (ii) within three (3) Business Days following any related Advance Date with respect to any Loan, the Borrower shall deliver all other Required Loan Documents with respect to each Loan pledged as Collateral by the Borrower in connection with such Transaction;
10. The Borrower shall have delivered to the Administrative Agent an Officer’s Certificate (which may be part of the applicable Borrower’s Notice) in its reasonable discretion (it being acknowledged form and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable substance reasonably satisfactory to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any certifying that each of the foregoing conditions precedent has been satisfied (other than such conditions precedent (i) subject to be satisfied in respect of any Advance shall give rise to a right the judgment or satisfaction of the Administrative Agent and or any Lender or (ii) otherwise waived); and
11. The Borrower is in compliance with the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfiedMinimum Credit Enhancement Amount Test as evidenced by a Borrowing Base Certificate.
Appears in 1 contract
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1, A‑1 and a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 2:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 A‑3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(viiv) on and as of such day, immediately after giving effect to such Transaction, Transaction the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses clause (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (g) and the conditions precedent in clauses (f), (h) and (i) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) no event has occurred, or would result from such Transaction or from the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as application of such day (other than any representation and warranty proceeds thereof, that is made as constitutes a Default, an Event of Default or a specific date)Collateral Manager Termination Event;
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing BaseBase (or, to the extent permitted under Section 2.14(b), any Borrowing Base Deficiency is reduced);
(iii) the representations and warranties contained in Section 4.3 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(iv) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;.
(e) (i) With respect to any TransactionAdvance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Period End Date shall not have occurred occurred, and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(f) On each date specified in Section 4.5, the Seller shall be deemed to have certified that the representations and warranties contained in Section 4.5 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(g) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(gh) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(hi) With The Borrower and the Collateral Manager shall have received a copy of an Approval Notice, executed by the Administrative Agent, evidencing the approval of the Administrative Agent, in its sole discretion in accordance with clause (a) of the definition of “Eligible Loan,” of the Loans to be added to the Collateral;
(j) In connection with the initial Advance with respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 2:00 p.m. on the related Cut-Off Advance Date, a faxed or an emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (andor, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the any related Cut-Off DateAdvance Date with respect to any Loan;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans being acquired by the Borrower in connection with any such Advance Transaction are being sold to the Borrower purchased from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereofSeller, a true sale opinion with respect to such Loanseach Loan, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank Dechert LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement); and
(l) Prior to the initial Advance, the Administrative Agent shall have received evidence satisfactory to it that the Minimum Equity Amount has been contributed to the Borrower by the Equityholders. The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Crescent Capital BDC, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction“ Transaction ”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1A-1 , a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b)) , the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.23.2 ) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any Transaction, the Reinvestment Period End Date shall not have occurred and the Termination Date shall not have occurred;
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.22.2 ;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.112.11 , shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(h) With respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed or emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit JJ ) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k)) , so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Oaktree Specialty Lending Corp)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Advance under this Agreement and each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Advance, the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) a Funding Notice in the form of Exhibit A-1A‑1, a Borrowing Base Certificate and a Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Administrative Agent, no later than 3:00 p.m. on the Business Day prior to any such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 A‑3 and a Borrowing Base Certificate, executed by the Collateral Manager on behalf of the Borrower;
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) if the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) no event has occurred, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no Applicable Law shall prohibit or enjoin the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any Transaction, the Reinvestment Period End Date shall not have occurred and the Termination Date shall not have occurred;
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, all deliveries required by Section 2.2;
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent and the Administrative Agent;
(h) With respect to the acquisition of any Loan, the Borrower shall have delivered to the Collateral Agent (with a copy to the Administrative Agent), no later than 12:00 p.m. on the related Cut-Off Date, a faxed or emailed copy of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued (and, in the case of any Noteless Loan, a fully executed assignment agreement), and if any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Checklist and the Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Account;
(j) On each Cut-Off Date and each Advance Date, the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is made as of a specific date); and
(k) To the extent any Loans in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Oaktree Strategic Income II, Inc.)
Conditions Precedent to All Advances and Acquisitions of Loans. Each Loan Advance under this Agreement and Agreement, each Reinvestment of Principal Collections pursuant to Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b) (each, a “Transaction”) shall be subject to the further conditions precedent that:
(a) With respect to any Loan Advance, the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Administrator), by not later than the deadline set forth in Section 2.2(b) (or such shorter period as may be agreed to by the Administrative Agent and each Lender) no later than 2:00 p.m. on the Business Day immediately prior to the related Funding Date:
(i) ), a Funding Notice in the form of Exhibit A-1, A-1 and a Borrowing Base Certificate and a with respect to each Loan Schedule listing each Loan, if any, proposed to be acquired by the Borrower in connection with such Transaction; and
(ii) if a . [FS Investment] Loan is being acquired with such Advance, a certificate of assignment in the form of Exhibit F (including Exhibit A thereto) and containing such additional information as may be reasonably requested by the Administrative Agent and each Lender;Security Agreement
(b) With respect to any Reinvestment of Principal Collections permitted by Section 2.14(a)(i) and each acquisition of Loans in connection with a Substitution pursuant to Section 2.14(b), the Borrower (or the Collateral Manager on Borrower’s behalf of the Borrower) shall have delivered to the Administrative AgentAgent (with a copy to the Collateral Custodian and the Collateral Administrator), no later than 3:00 12:00 p.m. (New York City Time) on the Business Day prior to any date of such reinvestment, a Reinvestment Notice in the form of Exhibit A-3 and a Borrowing Base Certificate, executed by the Collateral Manager and on behalf of the Borrower;’s behalf.
(c) On the date of such Transaction (A) the Borrower shall be deemed to have certified that each of the following statements shall be true and correct as of such date correct, and (B) if the Borrower and the Collateral Manager shall have certified in the related Borrower’s Notice is executed by the Borrower, the Borrower shall have certified in such notice that (other than with respect to the Collateral Manager’s certifications in clause (d) and, with respect to reports required to be delivered by the Collateral Manager under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfiedsatisfied and shall thereby be deemed to have certified that:
(i) the The representations and warranties contained in Section 4.1 and Section 4.2 are true and correct in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true in all respects) on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (other than any representation and warranty that is expressly made as of a another specific date which were true, correct, and complete as of such date);
(ii) no No event has occurredoccurred and is continuing, or would result from such Transaction or from the application of proceeds thereof, that constitutes a Default or an Event of Default;
(iii) on On and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do does not exceed the Availability (or, to the extent permitted under Section 2.14, that any existing Borrowing Base;Base Deficiency is reduced); and
(iv) no Borrowing Base Deficiency exists or would result from such Advance;
(v) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance;
(vi) to the extent applicable to the requested Transaction and with respect to the Borrower, no No Applicable Law shall prohibit or enjoin the making of such Advance by any Lender or the proposed Reinvestment of Principal Collections or acquisition of Loans; and
(vii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount.
(d) On the date of such Transaction (A) the Collateral Manager shall be deemed to have certified that each of the following statements shall be true and correct as of such date and (B) the Collateral Manager shall have certified in the related Borrower’s Notice that (other than with respect to the Borrower’s certifications in clauses (c) and, with respect to reports required to be delivered by the Borrower under the Transaction Documents, clause (f) of this Section 3.2) all conditions precedent to the requested Transaction have been satisfied:
(i) the representations and warranties contained in Section 4.2 and Section 4.3 are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date);
(ii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Borrowing Base;
(iii) on and as of such day, immediately after giving effect to such Transaction, the Advances Outstanding do not exceed the Facility Amount;
(iv) each Collateral Quality Test is satisfied or Collateral Quality Improvement occurs after giving effect to such Advance and the addition to the Collateral of the Eligible Loans being acquired by the Borrower using the proceeds of such Advance; and
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Collateral Manager Event of Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Collateral Manager Event of Default;
(e) With respect to any TransactionLoan Advance under this Agreement or any Reinvestment of Principal Collections pursuant to Section 2.14(a)(i), the Reinvestment Revolving Period End Date shall not have occurred and (ii) with respect to any Transaction, the Termination Date shall not have occurred;
(e) [Reserved];
(f) The Borrower and Collateral Manager shall have delivered to the Administrative Agent (and, if applicable, to Collateral Custodian and the Collateral Administrator) all reports required to be delivered by either thereof as of the date of such Transaction including, without limitation, including all deliveries required by Section 2.2;; [FS Investment] Loan and Security Agreement
(g) The Borrower shall have paid all fees then required to be paid and, without duplication of Section 2.11, shall have reimbursed the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent for all fees, costs and expenses then required to be paid in connection with the closing of the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Lenders, the Collateral Agent Custodian, the Collateral Administrator and the Administrative Agent;
(h) With respect to [Reserved];
(i) In connection with each Loan Advance, unless otherwise waived by the acquisition of any LoanAdministrative Agent in its sole discretion, (i) the Borrower (or the Collateral Manager on its behalf) shall have delivered to the Collateral Agent Custodian (with a copy to the Administrative AgentAgent and the Collateral Administrator), no later than 12:00 p.m. 11:00 a.m. (New York City Time) on the related Cut-Off Advance Date, (a) a faxed or emailed copy Loan Checklist with respect to each Loan proposed to be pledged as Collateral by the Borrower in connection with such Transaction together with the Required Loan Documents described in clause (b)(i) of the duly executed original promissory notes for each such Loan in respect of which a promissory note is issued definition thereof, (and, b) in the case of any a Noteless Loan (other than an Effective Date Participation Interest), a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Borrower and an undated transfer or assignment document or instrument relating to such Noteless Loan, signed by the Borrower, as assignor, and the administrative agent (only in the event such administrative agent is an Affiliate of the Borrower) but not dated and not specifying an assignee and (c) for each Effective Date Participation Interest, a fully executed assignment master participation agreement), in form and if substance reasonably satisfactory to the Administrative Agent, which duly effects and evidences each such Participation Interest and evidence of payment or waiver of any Loans are closed in escrow, a certificate (in the form of Exhibit J) from the closing attorneys of fees associated with assigning any such Loan certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoingand (ii) within three (3) Business Days following any related Advance Date with respect to any Loan, the Borrower shall cause the Loan Checklist and the deliver all other Required Loan Documents to be in the possession of the Collateral Agent within (x) with respect to signed copies to signed originals or copies of any document required each Loan pledged as Collateral by clause (b) or clause (c) in the definition of “Required Loan Documents” that are unavailable as of the related Cut-Off Date and with respect to which unsigned copies have been delivered Borrower in connection with the following clause (y), seven (7) Business Days of the related Cut-Off Date and (y) otherwise, five (5) Business Days of the related Cut-Off Date;
(i) Prior to the initial Advance, the Borrower shall have deposited, or caused to be deposited, $50,000 into the Expense Reserve Accountsuch Transaction;
(j) On The Borrower shall have delivered to the Administrative Agent an Officer’s Certificate (which may be part of the applicable Borrower’s Notice) in form and substance reasonably satisfactory to the Administrative Agent certifying that each Cut-Off Date and each Advance Date, of the Seller shall be deemed to have certified that the representations and warranties contained in the Sale Agreement are true and correct in all respects on and as of such day as though made on and as of such day and shall be deemed to have foregoing conditions precedent has been made on such day satisfied (other than such conditions precedent (i) subject to the judgment or satisfaction of the Administrative Agent or any representation and warranty that is made as of a specific dateLender or (ii) otherwise waived); and
(k) To the extent any Loans The Borrower is in connection with any such Advance are being sold to the Borrower from the Seller and, prior to such sale, any such Loan was registered in the name of the Seller or an Affiliate thereof, a true sale opinion with respect to such Loans, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion (it being acknowledged and agreed that the opinion delivered by Milbank LLP on the Closing Date is acceptable to the Administrative Agent and satisfies the requirements of this Section 3.2(k), so long as such sales are made in accordance compliance with the facts described in such opinion and pursuant to the Sale Agreement). The failure of any of the foregoing conditions precedent to be satisfied in respect of any Advance shall give rise to Minimum Credit Enhancement Amount Test as evidenced by a right of the Administrative Agent and the applicable Lender, which right may be exercised at any time on the demand of the applicable Lender, to rescind the related Advance and direct the Borrower to pay to the Administrative Agent for the benefit of the applicable Lender an amount equal to the related Advances made during any such time that any of the foregoing conditions precedent were not satisfiedBorrowing Base Certificate.
Appears in 1 contract
Samples: Loan and Security Agreement (FS Investment Corp IV)
