Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent: (i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent; (ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full; (iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law; (iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally; (v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect; (vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent; (vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred; (viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent; (ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender; (x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency; (xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement; (xii) The URCA Account has been established pursuant to the URCA Account Agreement; and (xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date). (b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 6 contracts
Samples: Loan and Servicing Agreement (SLR Investment Corp.), Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after upon the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction first day on which all of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent are satisfied:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable out-of-pocket up-front expenses and fees (including legal fees, any fees required under any Lender Fee Letter and the Collateral Custodian and Account Bank Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(vii) any and all information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management Parent or the Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiii) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor Transferor, the Parent and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(viiiv) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent;
(v) no material adverse change Material Adverse Effect on the business, assets, financial conditions or performance of the Servicer Parent and its subsidiariesSubsidiaries, including the Borrower, on a consolidated basis, or any material portion basis has occurred and is continuing as of the initial proposed Eligible Loan Assets has occurredsuch day;
(viiivi) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Parent, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ixvii) the Administrative Agent shall have received approval from its internal credit committee and all other necessary approvals, as required by the Administrative Agent, in its sole discretion; and
(viii) each applicable Lender Agent that has requested a Variable Funding Note shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related such Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 5 contracts
Samples: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS KKR Capital Corp)
Conditions Precedent to Effectiveness. The following shall be conditions precedent to the effectiveness of this Agreement on the Closing Date:
(a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent Lenders shall have received such other each of the documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, and other agreements listed on Schedule IV that are required to be delivered on or prior to the Closing Datedate hereof, each in form together with all fees due and substance satisfactory to payable on the Administrative Agent;
(ii) all reasonable up-front expenses date hereof and fees (including legal fees, any fees required under the Fee Letters) that which are invoiced or estimated at or least two (2) Business Days prior to the Closing Date shall have been paid in fullDate;
(iiib) all other acts and conditions (including, without limitationon the Closing Date, the obtaining absence of (i) any necessary consents and regulatory approvals and change, occurrence, or development that could, individually or in the making of any required filingsaggregate, recordings or registrations) required to reasonably be done and performed and expected to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any a Material Adverse Effect Effect; (ii) any material adverse change in or material disruption of conditions in the financial, banking or commercial loan capital markets; (iii) any event, circumstance, or capital markets generallyinformation or matter which is inconsistent in a material adverse manner with any event, circumstance, or information or other matter disclosed to Lender by the Loan Parties prior to the date hereof; and (iv) any change which could reasonably be expected to have a material adverse effect on the value or marketability of the transactions contemplated by the Loan Documents or any security derived in whole or in part there from;
(vc) any each Lender shall have completed satisfactory review of UCC, lien, judgment, litigation, bankruptcy and all information submitted to name variation search reports naming each Loan Party from the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete appropriate offices in all material respects and not misleading in any material respect;relevant jurisdictions; and
(vid) the Administrative Agent and each Lender shall have received all documentation and other information requested by with respect to the Administrative Agent in its sole discretion or Loan Parties required by regulatory authorities with respect to or the Borrower, the Transferor and the Servicer Administrative Agent’s and/or such Lender’s internal policies under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal shall have completed their due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, review in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)connection therewith.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 4 contracts
Samples: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement Joinder shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent have been fulfilled to the sole discretion of, or waived in writing by, reasonable satisfaction of the Administrative Agent:
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof This Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto effect and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent.
(b) All action on the part of the Additional Borrower and each other party necessary for the valid execution, delivery and performance by the Additional Borrower, the Existing Borrower, the Pledgor and the Guarantor of this Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have been provided to the Administrative Agent.
(c) All due diligence items required under the Credit Agreement with respect to the proposed Borrowing Base Properties have been delivered to the Administrative Agent and those conditions precedent pursuant to Section 6.12 of the Credit Agreement have been fully satisfied.
(d) The Additional Borrower shall have delivered the following to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:
(i) A certified copy of such party’s certificate of formation and a certificate of legal existence and good standing issued by the Secretary of the State of its incorporation or organization, and evidence that such party is validly existing, in good standing and qualified to engage in business in each Lender Agentjurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification.
(ii) A certificate of an authorized officer relating to the organization and existence of such party, the authorization of the transactions contemplated by the Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all organizational documents.
(iii) Execution and delivery by the Additional Borrower (and as applicable, the Guarantor) of the following Loan Documents:
(A) Joinder to the Note;
(viiB) no material adverse change on the business, assets, financial conditions or performance The Security Document required under Subsection 4.01(a) (iv) of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;Credit Agreement; and
(viiiC) Such other applicable documents and agreements required by the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;.
(ixe) each applicable Lender The Administrative Agent shall have received a duly executed copy written legal opinion of its Revolving Note, in a principal amount equal the Additional Borrower’s counsel addressed to the Commitment of Administrative Agent and the related Lender;other Lenders, covering such matters relating to the Additional Borrower, the Loan Documents and/or the transactions contemplated thereby as the Administrative Agent shall reasonably request.
(xf) Each Liquidity Bank whose commercial paper is being rated All fees and expenses incurred by one or more Rating Agency shall have received, to the extent required under Administrative Agent in connection with the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution preparation and delivery negotiation of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account Joinder and related documents (including the Principal Collection Account reasonable fees and Interest Collection Account sub-accounts thereunder) has been established pursuant expenses of counsel to the Collection Account Agreement;
(xiiAdministrative Agent) The URCA Account has shall have been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest paid in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)full.
(bg) By its execution No Default or Event of Default shall have occurred and delivery of this Agreement, each of the be continuing.
(h) The Existing Borrower and the Servicer hereby certifies that each of the conditions precedent Guarantor shall have executed and delivered to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedAdministrative Agent such additional documents, instruments and agreements as the Administrative Agent may reasonably request.
Appears in 3 contracts
Samples: Joinder to Credit Agreement (Grubb & Ellis Healthcare REIT II, Inc.), Joinder to Credit Agreement (Grubb & Ellis Healthcare REIT II, Inc.), Joinder to Credit Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Conditions Precedent to Effectiveness. This Joinder shall not be effective until each of the following conditions precedent have been fulfilled to the reasonable satisfaction of the Agents:
(a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto effect and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Agents.
(b) By All action on the part of the New Facility Guarantor and the other Loan Parties necessary for the valid execution, delivery and performance by the New Facility Guarantor and the other Loan Parties of this Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Agents shall have been provided to the Agents.
(c) The New Facility Guarantor (and each other Loan Party, to the extent requested by the Agents) shall each have delivered the following to the Agents, in form and substance reasonably satisfactory to the Agents:
(i) A Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its execution incorporation or organization.
(ii) A certificate of an authorized officer relating to the organization and existence of such party, the authorization of the transactions contemplated by the Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents.
(iii) A Perfection Certificate.
(iv) Execution and delivery by the New Facility Guarantor of the following Loan Documents:
a) Joinder to the Security Documents; and
b) any other applicable documents and agreements required by the Agents.
(d) The Agents shall have received a written legal opinion of the Loan Parties’ counsel addressed to the Agents and the other Lenders, covering such matters relating to the New Facility Guarantor, the Loan Documents and/or the transactions contemplated thereby as the Agents shall reasonably request.
(e) The Collateral Agent shall have received all documents and instruments, including UCC financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered, published or recorded in order to create or perfect the second priority Lien (subject only to Permitted Encumbrances having priority by operation of Applicable Law) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded or other arrangements reasonably satisfactory to the Collateral Agent for such filing, registration or recordation shall have been made.
(f) All fees and Credit Party Expenses incurred by the Agents in connection with the preparation and negotiation of this Agreement, each Joinder and related documents (including the reasonable fees and expenses of the Borrower and the Servicer hereby certifies that each of the conditions precedent counsel to the effectiveness of this Agreement set forth in this Section 3.01 Agents) shall have been satisfiedpaid in full.
(g) No Default or Event of Default shall have occurred and be continuing.
(h) The Loan Parties shall have executed and delivered to the Agents such additional documents, instruments and agreements as the Agents may reasonably request.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (American Apparel, Inc), Credit Agreement (American Apparel, Inc)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) This Agreement There shall be effective uponhave occurred no Material Adverse Change since May 31, and 2021.
(b) There shall exist no Lender shall be obligated to make action, suit, investigation, litigation or proceeding affecting the Holding Company or any Advance hereunder from and after the Closing Dateof its Subsidiaries pending or threatened before any court, nor shall any Lender, the Collateral Custodian, the Backup Servicer governmental agency or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, Agreement or any Note or the assignment consummation of the Contribution Agreementtransactions contemplated hereby.
(c) All governmental and all other Transaction Documents third party consents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by this Agreementa duly authorized officer of the Holding Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or prior to before the Closing DateEffective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent;Agent and (except for any Revolving Credit Notes) in sufficient copies for each Lender:
(i) (A) Counterparts of this Agreement, executed by a Responsible Officer of each Borrower and a duly authorized officer of each Lender, (B) the Revolving Credit Notes executed by a Responsible Officer of each Borrower to the order of any Lenders requesting the same, and (C) counterparts of any other Loan Documents executed by a Responsible Officer of the applicable Borrower and a duly authorized officer of each other Person party thereto.
(ii) Certified copies of the resolutions of the Board of Directors of each Borrower approving this Agreement and any Notes, and of all reasonable up-front expenses documents evidencing other necessary corporate action and fees (including legal feesgovernmental approvals, if any, with respect to this Agreement and any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;Notes.
(iii) all A certificate of the Secretary or an Assistant Secretary of each Borrower certifying as to the charter, by-laws and other acts and conditions organizational documents of each Borrower (includingwhich, without limitationto the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the obtaining resolutions of any necessary consents the governing body of each Borrower, the good standing, existence or its equivalent of each Borrower in the jurisdiction of its organization, and regulatory approvals and of the making incumbency (including specimen signatures) of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance Responsible Officers of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;each Borrower.
(iv) A favorable opinion of Xxxxx & XxXxxxxx, LLP substantially in the reasonable judgment form of Exhibit D hereto and as to such other matters as the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Agent may reasonably request.
(v) any and all information submitted A Solvency Certificate signed by a Responsible Officer of each Borrower as to the Administrative Agent by financial condition, solvency and related matters of the BorrowerBorrowers and their respective Subsidiaries, taken as a whole on a consolidated basis, after giving effect to the Transferor, initial Advances under this Agreement and the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;other transactions contemplated hereby.
(vi) Financial statement projections through and including the Administrative Holding Company’s 2026 fiscal year, together with such other financial information as the Agent and the Lenders shall reasonably request.
(vii) Such documents and certificates as the Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowers, and any other legal matters relating to the Borrowers or the Loan Documents, all in form and substance satisfactory to the Agent and its counsel and as further described in the list of closing documents attached as Exhibit F.
(g) The Lenders shall have received received: (i) at least three (3) Business Days prior to the Effective Date, all documentation and other information requested by the Administrative Agent in its sole discretion or required by bank regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
requested at least seven (xi7) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant days prior to the Collection Account Agreement;
Effective Date; and (xiiii) The URCA Account has been established pursuant at least three (3) Business Days prior to the URCA Account Agreement; and
Effective Date, to the extent that a Borrower qualifies as a “legal entity customer under 31 C.F.R. §–1010.230 (xiii) the Borrower has “Beneficial Ownership Regulation”), a valid certification regarding beneficial ownership interest in required by the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Beneficial Ownership Regulation.
(bh) By its The Borrowers shall have terminated the commitments, and, prior to or simultaneously with the initial Borrowing hereunder, paid in full all Debt, interest, fees and other amounts outstanding, under the Existing Credit Agreement, and each of the Lenders that is a party to such credit facility hereby waives, upon execution and delivery of this Agreement, each the five Business Days’ notice required by Section 2.05 of the Borrower and the Servicer hereby certifies that each of the conditions precedent said Credit Agreement relating to the effectiveness termination of this Agreement set forth in this Section 3.01 have been satisfiedcommitments thereunder.
Appears in 3 contracts
Samples: Credit Agreement (Scholastic Corp), Credit Agreement (Scholastic Corp), Credit Agreement (Scholastic Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generallyEffect;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respectmisleading;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent such Lender in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your know-your-customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) at least five (5) days prior to the Closing Date, the Borrower shall deliver a Beneficial Ownership Certification;
(vi) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(vii) in the reasonable judgment of the Administrative Agent, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including in the Borrower’s (or the Servicer’s) underwriting, on a consolidated basisservicing, or any material portion collection, operating and reporting procedures and systems since the completion of due diligence by the initial proposed Eligible Loan Assets has occurredAdministrative Agent;
(viii) the results of the Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;; and
(ix) each the Borrower shall have paid in full all fees then required to be paid thereby, including all fees required hereunder and under the applicable Lender Fee Letters, the Administrative Agent Fee Letter and the Collateral Agent and Collateral Custodian Fee Letter and shall have received a duly executed copy reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of its Revolving Note, in a principal amount equal to closing the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required transactions contemplated hereunder and under the terms of such CP Lender’s program documentsother Transaction Documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account reasonable and Interest Collection Account subdocumented out-accounts thereunder) has been established pursuant to of-pocket attorney fees and any other legal and document preparation costs incurred by the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to Lenders and the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Administrative Agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under any Lender Fee Letter and the U.S. Bank Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent shall have received received, all documentation and other information requested by the Administrative Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(viiv) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent;
(vi) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiivii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;; and
(ixviii) each applicable Lender Agent that has requested a Variable Funding Note shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related such Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp.), Loan and Servicing Agreement (Fifth Street Finance Corp), Loan and Servicing Agreement (Fifth Street Finance Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, fees and any fees required under the Fee LettersLetter) that are invoiced at or prior to the Closing Restatement Date shall have been paid in full;
(iiiii) (x) payment in full of all other acts and conditions (includingIndebtedness owed to Xxxxx Fargo Bank, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior National Association pursuant to the execution, delivery and performance of this Agreement and all related Transaction JPMorgan Loan Documents and (y) the closing of the amended JPMorgan Loan Documents, to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Lawreasonable satisfaction of the Agent;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to the Administrative Agent Note Purchaser by the Borrower, the Transferor, the Servicer, Solar Management Equityholder or the Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent Note Purchaser shall have received received, all documentation and other information requested by the Administrative Agent Note Purchaser in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Note Purchaser;
(v) the Agent shall have received on or before the date of such Advance the items listed in Schedule I hereto, each in form and substance satisfactory to the Agent and each Lender the Note Purchaser;
(vi) the Agent and Note Purchaser have received approval from their internal credit committee and all other necessary approvals, as required by the Agent;, in its sole discretion; and
(vii) no material adverse change effect on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that that, and the Agent hereby acknowledges that, each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 3 contracts
Samples: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be become effective upon, on and no Lender shall be obligated to make any Advance hereunder from and after as of the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction first date on which each of the following conditions precedentprecedent have been satisfied:
(a) The merger of Sears and Kmart (the "Merger") shall have been consummated substantially on the terms disclosed by Holdings in its Registration Statement or on such other terms reasonably satisfactory to the Lead Arrangers and the Agent.
(b) There shall have occurred no Material Adverse Change since the date the Registration Statement was declared effective by the SEC.
(c) All governmental and third party consents and approvals necessary in connection with the Merger and the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, as determined and no law or regulation shall be applicable in the sole discretion ofreasonable judgment of the Lenders that restrains, prevents or waived imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Lenders shall have received projections for Holdings through January 2006.
(e) All actions and documents required to establish the Agent's security interest in the Collateral with the priority required herein (including lien searches and Uniform Commercial Code financing statements) shall have been completed in a manner satisfactory to the Agent.
(f) The Borrowers shall have notified each Lender and the Agent in writing byas to the proposed Effective Date.
(g) The Borrowers shall have paid all accrued fees and expenses of the Agent, the Administrative AgentLead Arrangers and the Lenders payable hereunder for which invoices have been presented (including the accrued fees and expenses of one counsel to the Agent and Lead Arrangers).
(h) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by duly authorized officers of the Borrowers, dated the Effective Date, stating that:
(i) this Agreement, The representations and warranties contained in each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment Loan Document are correct on and as of the Contribution AgreementEffective Date, and
(ii) No event has occurred and all other Transaction Documents and all other agreements and opinions is continuing that constitutes a Default or an Event of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Default.
(i) The Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to before the Closing DateEffective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent;:
(i) The Guarantee and Collateral Agreement, duly executed by Holdings, Sears, Kmart, the Borrowers and each Subsidiary Guarantor.
(ii) all reasonable up-front expenses A Borrowing Base Certificate, duly completed and fees executed by Holdings and dated (including legal feesi) in the event the Effective Date occurs on or before the 15th of the month, any fees required under as of the Fee Letters) end of the second fiscal month immediately preceding the month in which the Effective Date occurs (it being understood that are invoiced at or prior a Borrowing Base Certificate with respect to the Closing immediately preceding fiscal month shall be delivered in accordance with Section 6.01(j)(iii)) or (ii) in the event the Effective Date shall have been paid occurs after the 15th of the month, as of the end of the fiscal month immediately preceding the month in full;which the Effective Date occurs.
(iii) Certified copies of the resolutions of the Board of Directors of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other acts necessary corporate action and conditions (includinggovernmental approvals, without limitationif any, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required with respect to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and each Loan Document to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;which it is a party.
(iv) in the reasonable judgment A certificate of the Administrative AgentSecretary or an Assistant Secretary of each Loan Party, there has not been any change after each certifying the date hereof in Applicable Law names and true signatures of the officers of such Loan Party authorized to sign this Agreement and each Loan Document to which adversely affects any Lender’s it is a party, and the other documents to be delivered hereunder or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;thereunder.
(v) A favorable opinion of in-house counsel to Sears, of in-house counsel to Kmart and of Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the Borrowers, substantially in the form of Exhibit E-1, E-2 and E-3 hereto, respectively, and as to such other matters as any and all information submitted to Lender through the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;may reasonably request.
(vi) A favorable opinion of local counsel to the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities Borrowers with respect to the Borrower, perfection of the Transferor and Agent's security interest in the Servicer Collateral of each Loan Party organized under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all laws of the state of Delaware or Michigan in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(bj) Holdings and its Subsidiaries shall have terminated the commitments and paid in full all of the Debt, interest, fees and other amounts outstanding under (i) the Three-Year Credit Agreement, dated as of May 17, 2004, among SRAC, the lenders parties thereto, Citibank, N.A., as administrative agent, and the other agents named therein and (ii) the Credit Agreement, dated as of May 6, 2003, as amended and restated as of October 7, 2004, among Kmart Corporation, the lenders parties thereto, General Electric Capital Corporation, as administrative agent, and the other agents named therein, and reasonably satisfactory arrangements shall have been made for the termination of all Liens granted thereunder. By its execution and delivery of this Agreement, each of the Borrower and the Servicer Lenders that is a lender under such credit agreements hereby certifies that each of the conditions precedent to the effectiveness of this Agreement waives any requirement set forth in this Section 3.01 such credit agreements of prior notice of the termination of the commitments thereunder.
(k) The Registration Statement shall have been satisfieddeclared effective.
Appears in 2 contracts
Samples: Credit Agreement (Sears Roebuck Acceptance Corp), Credit Agreement (Kmart Holding Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Document shall have been duly executed by, and delivered to, the parties hereto and thereto thereto, and the Administrative Agent shall have received copies of the Advisory Agreements and such other documents, instruments, agreements agreements, certificates and legal opinions as any Lender the Administrative Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management any Borrower Party or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiii) the Administrative Agent shall have received all documentation each Borrower Party’s underwriting, servicing, collection, operating, and other information requested by reporting procedures and systems are satisfactory to the Administrative Agent in its sole discretion discretion;
(iv) a satisfactory review by the Administrative Agent of all organizational documents and material contracts of each Borrower Party (including, without limitation, the Advisory Agreements);
(v) a satisfactory review by the Administrative Agent of business, financial, legal, tax and accounting due diligence relating to transactions contemplated hereby, each Borrower Party and the transactions contemplated hereunder are satisfactory to the Administrative Agent in its sole discretion;
(vi) in the reasonable judgment of the Administrative Agent and each Lender Agent, there not having been any change in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s entering into the transactions contemplated by the Transaction Documents or material disruption after December 31, 2013 in the financial, banking or commercial loan or capital markets generally;
(vii) the Administrative Agent and the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information required by bank regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56;
(viii) a satisfactory due diligence review by the Administrative Agent of each Loan submitted for consideration in the initial Collateral Portfolio;
(ix) the Administrative Agent and each Institutional Lender shall have received each required approval (including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to from its internal credit committee);
(x) the Administrative Agent and each Lender the Lenders shall have received the fees (including fees, disbursements and other charges of counsel to the Administrative Agent) to be received on the Closing Date referred to herein or in any other Transaction Document;
(viixi) since December 31, 2013, no material adverse change on has occurred in the business, assets, financial conditions or performance condition of the Servicer and its subsidiariesEquityholder, including the BorrowerSeller, on a consolidated basis, any Borrower Advisor or the Borrower or in any material portion of the assets in the initial proposed Eligible Loan Assets has occurredCollateral Portfolio;
(viiixii) the results Administrative Agent shall have received satisfactory evidence that the Seller, the Borrower and the Collateral Manager have obtained all required consents and approvals of Administrative Agent’s legal due diligence relating all Persons to the Transferorexecution, delivery and performance of this Agreement and the Borrower, other Transaction Documents to which it is a party and the Servicer, the Eligible Loan Assets and consummation of the transactions contemplated hereunder are hereby or thereby;
(xiii) the Collateral Manager and the Borrower shall each have delivered to the Administrative Agent a certificate as to whether such Person is Solvent in the form of Exhibit P;
(xiv) the Borrower and the Collateral Manager shall have delivered to the Administrative Agent a certification that no Unmatured Event of Default, Event of Default or Collateral Manager Event of Default has occurred and is continuing;
(xv) the Administrative Agent shall have received (i) the customary executed legal opinion or opinions of Dechert LLP, counsel to the Borrower and the Collateral Manager, covering enforceability, grant and perfection of the security interests on the Collateral Portfolio and non-consolidation of the Borrower and (ii) bring-down legal opinions of Dechert LLP covering the enforceability of the Advisory Agreements as of the Closing Date, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion;
(xvi) all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and substance to the Administrative Agent;
(ixxvii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related such Lender;
(xxviii) Each Liquidity Bank whose commercial paper the UCC-1 financing statement is being rated by one or more Rating Agency in proper form for filing in the filing office of the appropriate jurisdiction;
(xix) the Administrative Agent shall have receivedreceived a secretary’s certificate of each of the Collateral Manager and the Borrower that includes a copy of the resolutions (or other authorizing instruments, if applicable), in form and substance satisfactory to the extent required under Administrative Agent, of the terms Board of Directors (or similar governing or managing body) of such CP Lender’s program documentsPerson authorizing (i) the execution, the written confirmation of each such Rating Agency that the execution delivery and delivery performance of this Agreement will not result and the other Transaction Documents to which it is a party, (ii) in a withdrawal or downgrading the case of the then-current rating Borrower, the borrowings contemplated hereunder, and (iii) in the case of such commercial paper the Borrower, the granting by such Rating Agency;
(xi) The Collection Account (including it of the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established Liens created pursuant to the Collection Account Agreement;
Transaction Documents, certified by the Secretary or an Assistant Secretary (xiior other authorized Person) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV such Person as of the Closing Date, which certification shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions, or other authorizing instruments, if applicable, thereby certified have not been amended, modified, revoked or rescinded;
(xx) the Administrative Agent shall have received a certification of each of the Collateral Manager and the Borrower, dated the Closing Date, as to the incumbency and signature of the officers of such Person executing any Transaction Document, which certification may be included in the certificate delivered in respect of such Person pursuant to Section 3.01(a)(xix) and satisfactory in form and substance to the Administrative Agent and shall be executed by an Authorized Person of such Person;
(xxi) the Administrative Agent shall have received true and complete copies of the organizational documents of each of the Collateral Manager and the Borrower, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary (or other authorized Person) of such Person, which certification shall be included in the certificate delivered in respect of such Person pursuant to Section 3.1(a)(xix) and shall be in form and substance satisfactory to the Administrative Agent;
(xxii) the Administrative Agent shall have received certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Collateral Manager and the Borrower (i) in the jurisdiction of its organization and (ii) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect;
(xxiii) the Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1 necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Transaction Documents shall have been completed;
(xxiv) the Administrative Agent shall have received the results of a recent search by a Person satisfactory to the Administrative Agent, of the UCC, judgment and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the results of such search shall be satisfactory to the Administrative Agent;
(xxv) the Borrower shall have received the executed legal opinion or opinions of Xxxxx Lord LLP, counsel to the Collateral Agent, the Collateral Custodian and the Account Bank, covering enforceability of the Transaction Documents to which the each such Person is a party; and
(xxvi) the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) shall have received the Initial Notice of Borrowing.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (FS Energy & Power Fund), Loan and Servicing Agreement (FS Investment Corp II)
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent has been fulfilled to the sole discretion of, or waived in writing by, satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and thereto and the hereto. The Administrative Agent shall have received a fully executed copy hereof and of each other document required hereunder.
b. The Administrative Agent shall have received an updated collateral information certificate of each existing Loan Party.
c. All necessary consents and approvals to authorize this Amendment shall have been obtained by the applicable Loan Parties.
d. No Default or Event of Default shall have occurred and be continuing.
e. After giving effect to this Amendment, the representations and warranties herein and in the Credit Agreement and the other Loan Documents shall be true and correct, (i) to the extent qualified by materiality, in all respects, and (ii) to the extent not qualified by materiality, true and correct in all material respects, in each case, on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case they shall be true and correct in all respects or all material respects, as applicable, as of such earlier date).
f. The Administrative Agent shall have received the results of a recent lien search in each of the Loan Parties’ jurisdiction of organization, and such searches shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 7.3 of the Credit Agreement or discharged on or prior to the Third Amendment Effective Date pursuant to documentation satisfactory to the Administrative Agent.
g. Each Lender shall have received Notes or amended and restated Notes, as the case may be, in each case, duly executed by the Borrower.
h. The Administrative Agent shall have received (i) an officer’s certificate of each Borrower, dated as of the Third Amendment Effective Date, with appropriate insertions and attachments, including resolutions authorizing the transactions contemplated hereby the certificate of incorporation or other documentssimilar organizational document of each Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower, instrumentsthe bylaws or other similar organizational document of each Borrower and the relevant board resolutions or written consents of each Borrower, agreements (ii) a long form good standing certificate or certificate of status, as the case may be, for each Borrower from its jurisdiction of organization and (iii) good standing certificates as a foreign corporation issued by each jurisdiction in which the failure of the applicable Borrower to be qualified could reasonably be expected to result in a Material Adverse Effect.
i. The Administrative Agent shall have received a solvency certificate from a Responsible Officer of the Borrower, certifying that each of the Loan Parties, as of the Third Amendment Effective Date, is Solvent.
j. There shall not have occurred since December 31, 2015 any event or condition that has had or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
k. The Administrative Agent shall have received the executed legal opinion of Xxxxxx Xxxxxxx Xxxxx & Scarborough LLP, in a form reasonably satisfactory to the Administrative Agent. Such legal opinion shall cover such matters incident to the transactions contemplated by this Amendment as the Administrative Agent may reasonably require.
l. The Administrative Agent shall have received the fees, costs and expenses required to be paid pursuant to Section 10 of this Amendment (including the reasonable and documented fees and disbursements of legal counsel required to be paid thereunder which have been invoiced to Borrower prior to the date hereof).
m. All other documents and legal opinions as any Lender Agent shall reasonably request matters in connection with the transactions contemplated by this AgreementAmendment shall have been delivered, on executed, or prior to the Closing Date, each recorded and shall be in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)discretion.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Alarm.com Holdings, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal reasonable attorneys’ fees, documented out of pocket expenses, the Structuring Fee, any fees required under any Lender Fee Letter and the U.S. Bank Fee LettersLetter) that are invoiced at or prior to the Original Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents consents, all required legal opinions and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent and each Lender Agent, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption after May 31, 2012 in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, Seller or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative each Lender Agent shall have received all documentation and other information requested by the Administrative such Lender Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor Seller and the Servicer (and each Affiliate or any other key personnel) under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to each Lender Agent;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(viivi) since May 31, 2012, no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiivii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the TransferorSeller, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(viii) in the judgment of each Lender, Lender Agent and the Administrative Agent, there has not been any material adverse change in the Seller’s, the Borrower’s or the Servicer’s underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence; and
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided, that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s 's or the Administrative Agent’s 's ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrowerany Loan Party, the Transferor, Originator or the Servicer, Solar Management Servicer or any of their Affiliates is true, true and accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or such Lender and/or required by regulatory authorities with respect to the Borrowerany Loan Party, the Transferor Originator and the Servicer under applicable “"know your customer” " and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vi) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change in any Loan Party's (or the Servicer's) underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence by the Administrative Agent and each Lender;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of the Administrative Agent’s legal 's financial, legal, tax and accounting due diligence relating to the TransferorOriginator, the Borrowereach Loan Party, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiiviii) the Borrower has a valid ownership interest shall have paid in full all fees then required to be paid, including all fees required hereunder and under the agreed-upon initial pool applicable Lender Fee Letters and the Wxxxx Fargo Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of Eligible Loan Assets (as set forth in Schedule IV as of closing the Closing Date)transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment, consent or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under any Lender Fee Letter and the Xxxxx Fargo Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent and each Lender Agent, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption after September 10, 2009 in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative each Lender Agent shall have received received, all documentation and other information requested by the Administrative such Lender Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to each Lender Agent;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(viivi) since September 10, 2009, no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiivii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;; and
(ixviii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided, that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp), Loan and Servicing Agreement (Fifth Street Finance Corp)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”), on which the following conditions precedent have been satisfied:
(a) This There shall have occurred no material adverse change in the properties, business, or financial condition of the Borrower and its Subsidiaries taken as a whole since October 28, 2018, except as disclosed in the Borrower’s filings with the SEC or as disclosed in writing to the Lenders, in each case prior to the date hereof.
(b) Except as set forth under the heading “Legal Proceedings” in the Borrower’s 2018 Form 10-K and other SEC filings filed by Borrower prior to the Effective Date, there shall exist no action, suit or proceeding pending against, or to the knowledge of the Borrower threatened against or affecting, the Borrower or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official (i) in which there is a reasonable possibility of an adverse determination which would have a Material Adverse Effect, or (ii) which in any manner draws into question the validity of this Agreement or the Notes.
(c) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall be effective uponhave been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no Lender law, regulation or provision in an existing agreement shall be obligated to make any Advance hereunder from applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have paid (i) all fees then due in accordance herewith and after with the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or Fee Letter and (ii) all invoiced expenses of the Administrative Agent be obligated and the Arrangers (including the accrued reasonable fees and expenses of counsel to take, fulfill or perform any other action hereunder, untilthe Administrative Agent).
(e) On the Effective Date, the satisfaction following statements shall be true and the Administrative Agent shall have received a certificate signed by a duly authorized officer of the following conditions precedentBorrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as determined of the Effective Date, and
(ii) No event exists that constitutes a Default.
(f) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in the sole discretion of, or waived in writing by, form and substance reasonably satisfactory to the Administrative Agent:
(i) From each party hereto, an executed counterpart of this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto delivered by such party or counterparts hereof or customary written evidence thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;Agent (which may include electronic transmission of a signed signature page) that such party has signed a counterpart to this Agreement.
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior The Notes to the Closing Date shall have been paid in full;order of each Lender that has requested a Note pursuant to Section 2.08.
(iii) all other acts and conditions (includingA copy of the certificate of incorporation of the Borrower, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance together with all Applicable Law;amendments thereto, and a certificate of good standing for the Borrower, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(iv) in the reasonable judgment Certified copies of the Administrative Agent, there has not been any change after bylaws of the date hereof in Applicable Law Borrower and the general resolutions of the Board of Directors of the Borrower which adversely affects any Lender’s or authorize the Administrative Agent’s ability Borrower to enter into this Agreement and the transactions contemplated by Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Notes.
(v) any A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and all information submitted true signatures of the officers of the Borrower authorized to sign this Agreement and the Administrative Agent by Notes and the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;other documents to be delivered hereunder.
(vi) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel for the Administrative Agent Borrower addressing the matters set forth in Exhibit E.
(i) The Lenders shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT ActAct or other “know your customer” rules and regulations and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, all the Borrower shall deliver, to each Lender that so requests, a Beneficial Ownership Certificate in form and substance reasonably satisfactory relation to such Borrower (which requested certificate shall have been received at least five days prior to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Effective Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Applied Materials Inc /De), Term Loan Credit Agreement (Applied Materials Inc /De)
Conditions Precedent to Effectiveness. (a) This Agreement Joinder shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of until the following conditions precedent, as determined in precedent have each been fulfilled to the sole discretion of, or waived in writing by, reasonable satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed effect and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all be in form and substance reasonably satisfactory to the Administrative Agent.
b. All action on the part of the New Borrower and the other Loan Parties necessary for the valid execution, delivery and performance by the New Borrower of this Joinder and all other documentation, instruments, and agreements required to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have been provided to the Administrative Agent.
c. New Borrower (and each other Loan Party, to the extent requested by the Administrative Agent) shall each have delivered the following to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:
i. Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization.
ii. A certificate of an authorized officer of the due adoption, continued effectiveness, and setting forth the text, of each corporate resolution adopted in connection with the assumption of obligations under the Credit Agreement and the other Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents.
iii. Execution and delivery by New Borrower of such other documents, agreements and certificates as the Administrative Agent and each Lender Agent;the Collateral Agent may reasonably require.
(vii) no material adverse change on the businessd. The Agents, assetsupon their reasonable request, financial conditions or performance shall have received a favorable written legal opinion of the Servicer Loan Parties’ counsel addressed to the Agents and its subsidiariesthe other Lenders, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence covering such matters relating to the Transferor, the New Borrower, the Servicer, the Eligible Loan Assets and Documents and/or the transactions contemplated hereunder are satisfactory to thereby as the Agents shall reasonably request.
e. The Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy all documents and instruments, (including an authenticated record authorizing the Agents and their representatives to file such UCC financing statements as the Agents may determine to be appropriate), required by law or requested by the Administrative Agent or the Collateral Agent to create or perfect the first priority Lien (subject only to Permitted Encumbrances having priority by operation of its Revolving NoteApplicable Law) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, in a principal amount equal registered or recorded or other arrangements reasonably satisfactory to the Commitment of the related Lender;Agents.
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency f. The Loan Parties shall have received, executed and delivered to the extent required under the terms of Agents such CP Lender’s program additional documents, instruments, and agreements as the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Agents may reasonably request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Joinder to Loan Documents (Burlington Coat Factory Investments Holdings, Inc.), Joinder to Loan Documents (Burlington Coat Factory Investments Holdings, Inc.)
Conditions Precedent to Effectiveness. This Tenth Amendment shall not be effective until each of the following conditions precedent has been fulfilled to the sole satisfaction of the Lender:
(a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Tenth Amendment shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto effect and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each be in form and substance satisfactory to the Administrative Agent;Lender.
(iib) all reasonable up-front expenses and fees (including legal fees, any fees required under All action on the Fee Letters) that are invoiced at or prior to part of the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, Obligors necessary for the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the valid execution, delivery and performance by the Obligors of this Agreement Tenth Amendment and all related Transaction Documents other documentation, instruments, and agreements to constitute the same legal, valid and binding obligations, enforceable be executed in accordance with their respective terms, connection herewith shall have been done duly and performed effectively taken and evidence thereof satisfactory to the Lender shall have occurred in due and strict compliance with all Applicable Law;been provided to the Lender.
(ivc) in The Obligors shall have executed and delivered to the reasonable judgment Lender such additional documents, instruments, and agreements as the Lender may reasonably request.
(d) In accordance with the terms and conditions of Loan Agreement, the Obligors shall pay to Lender (i) all costs and expenses of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Notereasonable attorneys’ fees, in a principal amount equal to connection with the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have receivedpreparation, to the extent required under the terms of such CP Lender’s program documentsnegotiation, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (Tenth Amendment and all documents related thereto and/or associated therewith through and including the Principal Collection Account Tenth Amendment Effective Date in the amount of $11,981.80, and Interest Collection Account sub-accounts thereunder(ii) has been established pursuant the outstanding attorneys’ fees due prior to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest Tenth Amendment Effective Date in the agreed-upon initial pool amount of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)$23,323.00.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Revolution Lighting Technologies, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer Agent or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) Agreement and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I 3.01(a) hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Datethereto, each in form and substance reasonably satisfactory to the Administrative Agent;
(ii) all reasonable and documented up-front expenses and fees (including legal feesfees of outside counsel, any fees required under the Fee Letters) required to be paid on or before the Closing Date by the Borrower that are invoiced at or prior to least two (2) Business Days before the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals shall have been obtained and the making of any required filings, recordings or registrations) registrations shall have been made, to the extent required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management Borrower or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(v) the representations and warranties contained in Sections 4.01 and 4.02 are true and correct in all material respects (other than any representation or warranty already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects), and there exists no breach of any covenant under the Transaction Documents on and as of the Closing Date;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent or the Collateral Agent, as applicable, in its their sole discretion or and reasonably determined to be required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender or the Collateral Agent, as applicable;
(vii) since December 31, 2020, no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets Material Adverse Effect has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are reasonably satisfactory to Administrative Agent;; and
(ix) each applicable Lender Agent the Borrower shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Assets.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be become effective upon, and no Lender shall be obligated to make any Advance hereunder from and after as of the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction Effective Date at such time when all of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentare satisfied:
(ia) All action on the part of each Borrower and each other party necessary for the valid execution, delivery and performance by each Borrower of this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents documentation, instruments, and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Agent shall have been provided to the Agent.
(b) Borrowers shall have made the repayment of the Bridge Loan described in the Section 1 above.
(c) Borrowers shall have made the Minimum Senior Payment described in Section 3 above.
(d) STAG Industrial Operating Partnership, L.P. shall have executed bythe Guaranty described in Section 7 above in form acceptable to the Lender as of the Effective Date and shall have executed a Consent, together with STAG III Sparks, LLC, to this Agreement (signature page following Lender and delivered to, the parties hereto and thereto and the Administrative Borrowers’ signature pages hereto).
(e) The Agent shall have received such other documentsexecuted resolutions, instruments, agreements secretary’s certificates and certificates of legal opinions existence as any Lender the Agent shall may reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, specify all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;its counsel.
(viif) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender The Agent shall have received a duly executed copy written legal opinion of its Revolving Note, in a principal amount equal the Borrowers’ and Guarantors’ counsel addressed to the Commitment Agent and the Lender, covering such matters relating to the Borrowers, Guarantors, the Loan Documents and/or the transactions contemplated thereby as the Agent shall reasonably request.
(g) The Borrowers shall have paid an extension fee in the amount of 35 basis points on the outstanding balance of the related Lender;Senior Loan existing on the Effective Date after all principal payments of the Borrower are made pursuant to Section 3 and Section 5 hereof.
(xh) Each Liquidity Bank whose commercial paper is being rated All fees and expenses incurred by one or more Rating Agency shall have received, to the extent required under Agent in connection with the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution preparation and delivery negotiation of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account and related documents (including the Principal Collection Account reasonable fees and Interest Collection Account sub-accounts thereunder) has been established pursuant expenses of counsel to the Collection Account Agreement;
(xiiAgent) The URCA Account has shall have been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest paid in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)full.
(bi) By its execution No Event of Default shall have occurred and delivery of this Agreement, each of the Borrower be continuing.
(j) The Borrowers shall have executed and the Servicer hereby certifies that each of the conditions precedent delivered to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedAgent such additional documents, instruments, and agreements as the Agent may reasonably request.
Appears in 2 contracts
Samples: Senior Loan Agreement (STAG Industrial, Inc.), Senior Loan Agreement (STAG Industrial, Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective, and the obligations of the Lenders to make Revolving Credit Advances and of the Issuing Lenders to issue Letters of Credit hereunder shall become effective, on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) This Agreement There shall be effective uponhave occurred no Material Adverse Change since September 30, and 2014.
(b) There shall exist no Lender shall be obligated to make action, suit, investigation, litigation or proceeding affecting the Borrower or any Advance hereunder from and after the Closing Dateof its Subsidiaries pending or threatened before any court, nor shall any Lender, the Collateral Custodian, the Backup Servicer governmental agency or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters disclosed in the SEC Reports prior to the date hereof (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, Agreement or any Note or the assignment consummation of the Contribution Agreement) transactions contemplated hereby, and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof there shall have been duly executed by, no change in the Disclosed Litigation that would have a Material Adverse Effect.
(c) All governmental and delivered to, the parties hereto third party consents and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request approvals necessary in connection with the transactions contemplated by this Agreement, on or prior hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Closing Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid, or will pay with the initial Advance on the Effective Date, all accrued fees and expenses of the Agent and the Lenders (including, to the extent invoiced, the reasonable and documented accrued fees and expenses of counsel to the Agent).
(f) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to a Material Adverse Effect shall be correct in all respects) on and as of the Effective Date,
(ii) No Material Adverse Change has occurred since September 30, 2014, and
(iii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Administrative Agent and (except for the Revolving Credit Notes and the Swing Line Note) in sufficient copies for each Lender:
(i) Either (x) a counterpart of this Agreement signed on behalf of the Agent;, the Borrower and each Initial Lender or (y) evidence satisfactory to the Agent (which may include an electronic transmission) that such party has signed a counterpart of this Agreement.
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior The Revolving Credit Notes to the Closing Date shall have been paid in full;Lenders to the extent requested by any Lender pursuant to Section 2.17, and a Swing Line Note to the Swing Line Lender to the extent requested by the Swing Line Lender.
(iii) all other acts Such documents and conditions (including, without limitation, certificates as the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior Agent may reasonably request relating to the executionorganization, delivery existence and performance good standing of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;Company.
(iv) in the reasonable judgment Certified copies of the Administrative Agentresolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, there has not been any change after and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Notes.
(v) any A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and all information submitted true signatures of the officers of the Borrower authorized to sign this Agreement and the Administrative Agent by Notes and the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;other documents to be delivered hereunder.
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to A favorable opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Borrower, substantially in the Transferor form of Exhibit D hereto and as to such other matters as any Lender through the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance Agent may reasonably satisfactory to the Administrative Agent and each Lender Agent;request.
(viih) no material adverse change on The Borrower shall have terminated the business, assets, financial conditions or performance commitments of the Servicer lenders and its subsidiaries, including repaid or prepaid all of the Borrower, on a consolidated basis, obligations under (or any material portion shall have provided for the repayment or prepayment thereof with the proceeds of the initial proposed Eligible Loan Assets has occurred;
(viiiRevolving Credit Borrowing and Swing Line Advances to be made hereunder on the Effective Date) the results Existing Credit Agreement, and each of Administrative Agent’s legal due diligence relating the Lenders that is a party to the TransferorExisting Credit Agreement hereby waives, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the upon execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each any notice required by the Existing Credit Agreement relating to the termination of commitments thereunder and any claim for compensation under Section 8.04(c) of the Borrower and Existing Credit Agreement in connection with the Servicer hereby certifies payments made on the Effective Date. In furtherance thereof, the parties hereto that each of the conditions precedent are parties to the effectiveness of this Existing Credit Agreement set forth in this Section 3.01 have been satisfiedhereby acknowledge that the commitments under the Existing Credit Agreement are terminated.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Ugi Utilities Inc)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal reasonable attorneys’ fees, documented out of pocket expenses, the Structuring Fee, any fees required under any Lender Fee Letter and the U.S. Bank Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents consents, all required legal opinions and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent and each Lender Agent, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption after May 31, 2012 in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, Seller or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative each Lender Agent shall have received all documentation and other information requested by the Administrative such Lender Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor Seller and the Servicer (and each Affiliate or any other key personnel) under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to each Lender Agent;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(viivi) since May 31, 2012, no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiivii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the TransferorSeller, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(viii) in the judgment of each Lender, Lender Agent and the Administrative Agent, there has not been any material adverse change in the Seller’s, the Borrower’s or the Servicer’s underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence;
(ix) BDCA has Shareholder’s Equity of at least $50,000,000; and
(x) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided, that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent thereby in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor Equityholder and the Servicer Servicer, including without limitation, under applicable “know your customer” and antiAnti-money laundering rules Money Laundering Laws and/or with respect to Sanctions or policies and regulations, including, without limitationprocedures maintained by the Borrower, the USA PATRIOT ActEquityholder and/or the Servicer that are reasonably designed to ensure compliance with Sanctions, all in each case, in form and substance reasonably satisfactory to each such Lender (including the Beneficial Ownership Certification);
(ii) the Facility Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Facility Agent and each Lender Agentin its sole discretion;
(viiiii) the Facility Agent shall have determined in its reasonable discretion that there has been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including in the Borrower’s underwriting, on a consolidated basisservicing, or any material portion collection, operating and reporting procedures and systems since the completion of the initial proposed Eligible Loan Assets has occurred;due diligence thereby; and
(viiiiv) the results of Administrative Facility Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets Loans and the transactions contemplated hereunder are satisfactory to Administrative Facility Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that that, and the Facility Agent hereby acknowledges that, each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided that with respect to conditions precedent that expressly require the consent or approval of the Facility Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 2 contracts
Samples: Loan and Security Agreement (North Haven Private Income Fund LLC), Loan and Security Agreement (North Haven Private Income Fund LLC)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under any Lender Fee Letter, the Xxxxx Fargo Fee LettersLetter and the Xxxxx Fargo Delaware Fee Letter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(viiv) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(vi) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiivii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ixviii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiiix) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV V as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Solar Capital Ltd.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Account Bank, the Backup Servicer Servicer, the Collateral Administrator or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative AgentAgent and the Lead Arranger:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance reasonably satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Carlyle Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the representations and warranties contained in Sections 4.01, 4.02 and 4.03 are true and correct in all material respects, and there exists no breach of any covenant on and as of the Closing Date (other than any representation and warranty that is made as of a specific date);
(vii) CGMS has received an aggregate amount equal to or exceeding $150,000,000 in (x) net cash proceeds, plus (y) Unpledged Capital Commitments pursuant to one or more equity private placements;
(viii) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(viiix) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiix) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ixxi) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(xxii) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xixiii) The Collection Account (including the Principal Collection Account Subaccount and Interest Collection Account sub-accounts Subaccount thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiixiv) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (TCG Bdc, Inc.), Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable out-of-pocket up-front expenses and fees (including legal fees, fees and any fees required under any Fee Letter and the Collateral Administrator, Collateral Agent, Collateral Custodian and Securities Intermediary Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative AgentAgent and each Lender, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(viiv) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender;
(vi) in the reasonable judgment of the Administrative Agent and each Lender, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including in the Borrower’s or the Servicer’s underwriting, on a consolidated basisservicing, or any material portion collection, operating and reporting procedures and systems since the completion of due diligence by the initial proposed Eligible Loan Assets has occurredAdministrative Agent and each Lender;
(viiivii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;; and
(ixviii) each applicable Lender the Administrative Agent shall have received a duly executed copy of approval from its Revolving Noteinternal credit committee and all other necessary approvals, as required by the Administrative Agent, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)its sole discretion.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided, that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Conditions Precedent to Effectiveness. (a) This Agreement shall be become effective uponon and as of the date hereof (the "RESTATEMENT EFFECTIVE DATE") PROVIDED that the following steps occur on or before the Restatement Effective Date, and no Lender such steps shall be obligated deemed to make any Advance hereunder have occurred in the following order on the Restatement Effective Date: FIRST, PolyOne and the Seller shall execute and deliver the PolyOne Assignment, under which PolyOne sells and assigns to the Seller, and the Seller purchases and assumes from PolyOne, all of PolyOne's rights and after obligations under the Closing Date, nor shall any LenderOriginal Agreement as of the date hereof; and SECOND, the Collateral CustodianAgent shall have received, and shall have notified the Backup Servicer or Collection Agent and the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction Managing Agents of the following conditions precedent, as determined in the sole discretion its receipt of, or waived in writing by, the Administrative Agent:
(i) counterparts of this AgreementAgreement executed by the Seller, the Collection Agent, each Liquidity AgreementInvestor, the Citicorp Agent and the Agent, (ii) payment from PolyOne of the fees that are due and payable on the Restatement Effective Date under the Fee Letter, and (iii) the following, each Hedging Agreement, each collateral assignment agreement of which (including, without limitation, unless otherwise indicated) shall be dated the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Restatement Effective Date, each in form and substance satisfactory to the Administrative Agent:
(a) The Parent Undertaking, duly executed by PolyOne;
(b) The Certificates for each Investor, respectively (and the Citicorp Investors will cancel the "Certificates" as defined in and under the Original Agreement and deliver them to PolyOne);
(c) The Receivables Contribution and Sale Agreement, duly executed by the Seller and each Originator, together with:
(i) Proper financing statements naming each Originator as debtor, the Seller as secured party and CNAI, as Agent, as assignee, to be filed under the UCC of all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Seller's interests created or purported to be created by the Receivables Contribution and Sale Agreement;
(ii) Proper financing statement amendments, if any, necessary to release all reasonable up-front expenses security interests and fees (including legal feesother rights of any Person in the Receivables, any fees required under the Fee Letters) that are invoiced at Related Security, Collections or prior to the Closing Date shall have been paid in fullContracts previously granted by each Originator;
(iii) all other acts and conditions (includingCompleted requests for information, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings dated on or registrations) required to be done and performed and to have happened prior a date reasonably near to the executiondate of the initial Purchase, delivery listing all effective financing statements which name each Originator (under its present name and performance any previous name) as debtor and which are filed in the jurisdictions in which filings were made pursuant to subsection (c)(i) above, together with copies of this Agreement and all related Transaction Documents and such financing statements (none of which, except those filed pursuant to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective termssubsection (c)(i) above, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Lawcover any Receivables, Related Security, Collections or Contracts);
(iv) in the reasonable judgment of the Administrative AgentThe Consent and Agreement, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated duly executed by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Seller and each Originator; and
(v) any and all information submitted Subordinated Notes, duly executed by the Seller, to the Administrative Agent by order of each Originator, respectively.
(d) Certified copies of the Borrowercharter and by-laws, as amended, of each of the TransferorSeller, the ServicerPolyOne and each other Originator, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respectrespectively;
(vie) Good Standing certificates issued by the Secretary of State of the State of Delaware with respect to the Seller and good standing certificates issued by the Secretaries of State of Ohio, Virginia and Delaware with respect to each Originator, as applicable;
(f) A copy of the resolutions adopted by the Board of Directors of (i) the Administrative Seller approving the Transaction Documents to be delivered by it hereunder and the transactions contemplated hereby and thereby and (ii) each Originator approving the Transaction Documents to be delivered by it hereunder and the transactions contemplated hereby and thereby, in each case certified by its Secretary or Assistant Secretary;
(g) A certificate of the Secretary or Assistant Secretary of (i) Seller certifying the names and true signatures of the officers authorized on its behalf to sign the Transaction Documents and the other documents to be delivered by it hereunder, and (ii) each Originator certifying the names and true signatures of the officers authorized on its behalf to sign the Transaction Documents and the other documents to be delivered by it hereunder (on which certificates the Agent, each Managing Agent, and each Owner shall be entitled to conclusively rely until such time as the Agent shall have received all documentation and other information requested by from the Administrative Agent in its sole discretion Seller or required by regulatory authorities with respect to any Originator, as the Borrowercase may be, a revised certificate meeting the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agentrequirements of this subsection (g));
(viih) no material adverse change on Proper financing statements naming the businessSeller as debtor and CNAI, assetsas Agent, financial conditions as secured party, to be filed under the UCC of all jurisdictions that the Agent may deem necessary or performance of desirable in order to perfect the Servicer and its subsidiariesinterests created or purported to be created hereby;
(i) Proper financing statements, including the Borrowerif any, on a consolidated basisnecessary to delete those Receivables, Contracts, Related Security or Collections covered by, or to terminate the effectiveness of, other financing statements naming the Seller as debtor or seller and covering any material portion Receivables, Contracts, Related Security and Contracts;
(j) Completed requests for information, dated on or a date reasonably near to the date of the initial proposed Eligible Loan Assets has occurred;
Purchase, listing all effective financing statements filed in the jurisdictions referred to in subsection (viiih) above that name the results of Administrative Agent’s legal due diligence relating to the TransferorSeller as debtor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms together with copies of such CP Lender’s program documentsother financing statements (none of which, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established except those filed pursuant to the Collection Account Agreementsubsection (h) above, shall cover any Receivables, Contracts, Related Security or Collections;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Trade Receivables Purchase and Sale Agreement (Polyone Corp), Trade Receivables Purchase and Sale Agreement (Polyone Corp)
Conditions Precedent to Effectiveness. The satisfaction (or waiver in writing by Agents) of each of the following shall constitute conditions precedent to the effectiveness of this Amendment:
(a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent Agents shall have received this Amendment, duly executed and delivered by the parties hereto, and the same shall be in full force and effect.
(b) Agents shall have received a reaffirmation and consent substantially in the form attached hereto as Exhibit A, duly executed and delivered by each Guarantor which shall be in full force and effect.
(c) Agents shall have received the TL Amendment, duly executed and delivered by the parties thereto and in form and substance reasonably satisfactory to Agents.
(d) After giving effect to this Amendment, the representations and warranties herein and in the Credit Agreement and the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof) on and as of the date hereof as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date).
(e) There is no action, suit, proceeding, or arbitration (irrespective of whether purportedly on behalf of any Loan Party or any of its subsidiaries) at law or in equity, or before or by any federal, state, municipal, or other documentsgovernmental department, instrumentscommission, agreements board, bureau, agency, or instrumentality, domestic or foreign, pending or, to the actual knowledge of Borrower, threatened in writing against or affecting any Loan Party or any of its subsidiaries, that could reasonably be expected to have a Material Adverse Effect on any Loan Party or any of its subsidiaries, or could reasonably be expected to materially and adversely affect such Person’s ability to perform its obligations under the Loan Documents to which it is a party (including Borrower’s ability to repay any or all of the Loans when due).
(f) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing or shall result from the consummation of the transactions contemplated herein.
(g) All other documents and legal opinions as any Lender Agent shall reasonably request matters in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date Amendment shall have been paid in full;
(iii) all other acts and conditions (includingdelivered, without limitationexecuted, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed recorded and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all be in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Medley Management Inc.), Credit Agreement (Medley Management Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, fees and any fees required under the SMBC Lender Fee LettersLetter and the U.S. Bank Fee Letter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(vii) any and all information submitted to the Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiii) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, including without limitation, limitation the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(viiiv) the Administrative Agent shall have received on or before the date of the effectiveness of this Agreement the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent;
(v) the Administrative Agent shall have received approval from its internal credit committee and all other necessary approvals, as required by the Administrative Agent, in its sole discretion;
(vi) no material adverse change Material Adverse Effect on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(vii) the Lender, if the Lender has requested a Variable Funding Note, shall have received a duly executed Variable Funding Note, in a principal amount equal to the Maximum Facility Amount; and
(viii) the results of Administrative Agent’s legal financial, legal, Tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets to be included in the Collateral Portfolio on the date hereof and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that that, and (except with respect to the conditions set forth in clauses (a)(ii) or (a)(vi) above) the Administrative Agent hereby acknowledges that, each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Omnibus Amendment (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, accurate and complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent such Lender in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) the Borrower shall deliver a Beneficial Ownership Certification;
(vi) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vii) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including in the Borrower’s (or the Servicer’s) underwriting, on a consolidated basisservicing, or any material portion collection, operating and reporting procedures and systems since the completion of due diligence by the initial proposed Eligible Loan Assets has occurredAdministrative Agent and each Lender;
(viii) the results of the Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;
(ix) each the Borrower shall have paid in full all fees then required to be paid thereby, including all fees required hereunder and under the applicable Lender Fee Letters, the Administrative Agent Fee Letter and the Collateral Agent and Collateral Custodian Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of closing the transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent; and
(x) with respect to any Advance to be made on the Closing Date, the Lenders and the Administrative Agent shall have received a duly executed copy Notice of its Revolving Note, in a principal amount equal Borrowing with respect to such Advance demonstrating that immediately after the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms making of such CP Lender’s program documentsinitial Advance, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Borrowing Base Test shall be satisfied.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Conditions Precedent to Effectiveness. The satisfaction (or waiver in writing by Agents) of each of the following shall constitute conditions precedent to the effectiveness of this Amendment:
(a) This Agreement Agents shall have received this Amendment, duly executed and delivered by the parties hereto, and the same shall be effective uponin full force and effect.
(b) Agents shall have received a reaffirmation and consent substantially in the form attached hereto as Exhibit B, duly executed and no Lender delivered by each Guarantor which shall be obligated in full force and effect.
(c) After giving effect to make any Advance hereunder from and after the Closing Date, nor shall any Lenderthis Amendment, the Collateral Custodian, representations and warranties herein and in the Backup Servicer Credit Agreement and the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction text thereof) on and as of the following conditions precedentdate hereof as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date).
(d) There is no action, as determined in the sole discretion ofsuit, proceeding, or waived arbitration (irrespective of whether purportedly on behalf of any Loan Party or any of its subsidiaries) at law or in equity, or before or by any federal, state, municipal, or other governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, pending or, to the actual knowledge of Borrower, threatened in writing byagainst or affecting any Loan Party or any of its subsidiaries, that could reasonably be expected to have a Material Adverse Effect on any Loan Party or any of its subsidiaries, or could reasonably be expected to materially and adversely affect such Person’s ability to perform its obligations under the Administrative Agent:Loan Documents to which it is a party (including Borrower’s ability to repay any or all of the Loans when due).
(ie) After giving effect to this AgreementAmendment, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, no Default or Event of Default shall have occurred and be continuing or shall result from the assignment consummation of the Contribution Agreementtransactions contemplated herein.
(f) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the The Administrative Agent shall have received (i) a copy of the certificate of formation or certificate of limited partnership, as applicable, including all amendments thereto, of each Obligor, and a certificate as to the good standing of each Obligor as of a recent date, from the Secretary of State of such other documentsObligor’s State of formation; (ii) a certificate of the Secretary or Assistant Secretary of each Obligor or general partner or sole member thereof dated the Date hereof and certifying (A) that attached thereto is a true and complete copy of the by-laws, instrumentslimited liability company agreement or limited partnership agreement, agreements as applicable, including all amendments thereto, of such Obligor as in effect on the Date hereof and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or at all times since a date prior to the Closing Datedate of the resolutions described in clause (B) below, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee LettersB) that are invoiced at attached thereto is a true and complete copy of resolutions duly adopted by the board of members (or prior to the Closing Date shall have been paid in full;
(iiiequivalent body) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to such Obligor authorizing the execution, delivery and performance of this Agreement and all related Transaction the Loan Documents and to constitute the same legalwhich such Person is a party and, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment case of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferorborrowings under the Credit Agreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the Servicercertificate of formation or certificate of limited partnership, Solar Management as applicable, of such Obligor has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection with the Credit Agreement on behalf of their Affiliates is true, accurate, complete in all material respects such Obligor or general partner or sole member thereof; (iii) a certificate of another officer as to the incumbency and not misleading in any material respect;specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent may reasonably request.
(vig) The Administrative Agent shall have received a certificate, dated the Date hereof and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(h) The Administrative Agent shall have received all documentation fees and other information requested amounts due and payable on or prior to the Date hereof and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(i) The Administrative Agent shall have received, in its sole discretion or required by regulatory authorities with respect to the Borrowerimmediately available funds, the Transferor and Amendment Fee referred to in Section 5 hereof.
(j) The Administrative Agent shall have received a certificate from the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, chief financial officer of the USA PATRIOT Act, all Borrower in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on certifying that the businessLoan Parties, assetswhen taken as a whole, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating after giving effect to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder hereby, are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (solvent as set forth in Schedule IV as Section 3.22 of the Closing Date)Credit Agreement.
(bk) By its execution All other documents and delivery of legal matters in connection with the transactions contemplated by this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 Amendment shall have been satisfieddelivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent.
Appears in 2 contracts
Samples: Credit Agreement (Medley Management Inc.), Credit Agreement (Medley LLC)
Conditions Precedent to Effectiveness. The following shall be conditions precedent to the effectiveness of this Agreement:
(a) This Agreement the Lenders shall have received each of the documents, instruments, legal opinions and other agreements that are required to be effective upondelivered on or prior to the date hereof, together with all fees due and no Lender shall be obligated payable on the date hereof and which are invoiced or estimated at least two (2) Business Days prior to make any Advance hereunder from and after the Closing Date;
(b) the absence of (i) any change, nor occurrence, or development that could, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business condition (financial or otherwise), operation or performance of any Relevant Party, (ii) any material adverse change in or material disruption of conditions in the financial, banking or capital markets; (iii) [reserved]; and (iv) any change which could reasonably be expected to have a material adverse effect on the value or marketability of the transactions contemplated by the Loan Documents or any security derived in whole or in part therefrom;
(c) each Lender shall any Lenderhave completed satisfactory review of UCC, lien, judgment, litigation, bankruptcy and name variation search reports naming each Loan Party from the appropriate offices in relevant jurisdictions;
(d) each Lender shall have completed satisfactory review of all material agreements, including the Existing Management Agreements and the related Assignment of Management Agreements, the Collateral CustodianInterest Rate Cap Agreement and all other documents, agreements or other instruments material to any Property or Borrowers’ interest therein and approved each of the Backup Servicer or foregoing;
(e) each Lender and its counsel shall have completed their due diligence review of the financial, business, operations, assets, liabilities, corporate, capital, environmental, legal and management structure and contractual obligations of the Loan Parties and the Replacement BRG Sponsor, which review shall have provided the Administrative Agent be obligated to takeand each Lender with results and information which, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion ofjudgment of such Person, or waived in writing by, are satisfactory to permit the Administrative Agent:Agent and each Lender to enter into the financing transactions contemplated hereby;
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, upon the assignment reasonable request of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or made at least ten (10) days prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date Borrowers shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, provided to such Lender the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information so requested by the Administrative Agent in its sole discretion or required by regulatory authorities connection with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding the Anti-Money Laundering Laws, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory each case at least five (5) days prior to the Administrative Agent Closing Date and each (ii) at least five (5) days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, upon any Lender Agentrequest, deliver a Beneficial Ownership Certification in relation to such Borrower;
(viig) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating each Lender shall have received all necessary credit approvals in order to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and consummate the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiih) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, Relevant Parties shall have delivered each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedBRG Sponsor Replacement Documents.
Appears in 2 contracts
Samples: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Agreement is subject to the conditions precedent that, unless otherwise waived by the Agent in its sole discretion, (a) This Agreement the Agent shall (x) be effective uponreasonably satisfied that the Agent and each of the other Secured Parties will have protections provided for in the Interim Order and, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lenderextent then entered, the Collateral CustodianFinal Order, including the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction protections of Section 364(e) of the following conditions precedentBankruptcy Code with respect to any priority or lien granted or debt incurred pursuant to said Interim Order or Final Order and (y) have received on or before the date hereof each of the following, as determined each in form and substance (including the sole discretion of, or waived in writing by, date thereof) reasonably satisfactory to the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel those documents listed on Schedule I hereto B;
(ii) a copy of the Interim Order entered by the Bankruptcy Court that is in full force and effect and has not been vacated or counterparts hereof or thereof shall have been duly executed byreversed, is not subject to a stay, and delivered tohas not been modified or amended (except for modifications or amendments approved in writing by the Agent, the parties hereto in each case, acting in its reasonable discretion);
(iii) evidence that all “first day orders” and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, all related pleadings intended to be entered on or prior to the Closing Date, each entry of the Interim Order (including “a cash management order”) shall have been entered by the Bankruptcy Court and shall be reasonably satisfactory in form and substance satisfactory to the Administrative Agent;
Agent in all respects, and shall not have been (i) stayed, vacated, reversed or rescinded or (ii) all reasonable up-front expenses and fees without the prior written consent of the Agent, revised, amended or modified (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required not to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;unreasonably withheld); and
(iv) a copy of the DIP Order (as defined in the reasonable judgment of Financing Orders) entered by the Administrative Agent, there Bankruptcy Court that is in full force and effect and has not been any change after the date hereof vacated or reversed, is not subject to a stay, and has not been modified or amended (except for modifications or amendments approved in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated writing by the Transaction Documents or any Material Adverse Effect or material disruption Agent, in the financialeach case, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent acting in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor reasonable discretion) and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency evidence that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth the DIP Facility (as defined in this Section 3.01 have been satisfied.the Financing Orders) shall occur substantially simultaneously with the effectiveness hereof; and
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Dean Foods Co), Receivables Purchase Agreement (Dean Foods Co)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Account Bank, the Backup Servicer Servicer, the Collateral Administrator or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative AgentAgent and each of the Joint Lead Arrangers:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance reasonably satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Carlyle Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the representations and warranties contained in Sections 4.01, 4.02 and 4.03 are true and correct in all material respects, and there exists no breach of any covenant on and as of the Closing Date (other than any representation and warranty that is made as of a specific date);
(vii) CGMS has received an aggregate amount equal to or exceeding $150,000,000 in (x) net cash proceeds, plus (y) Unpledged Capital Commitments pursuant to one or more equity private placements;
(viii) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(viiix) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiix) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ixxi) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(xxii) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xixiii) The Collection Account (including the Principal Collection Account Subaccount and Interest Collection Account sub-accounts Subaccount thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiixiv) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 2 contracts
Samples: Loan and Servicing Agreement, Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, fees and any fees required under any Lender Fee Letter and the Wxxxx Fargo Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent and each Lender Agent, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender, each Lender Agent and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative each Lender Agent shall have received all documentation and other information requested by the Administrative such Lender Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to each Lender Agent;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(vi) in the judgment of the Administrative Agent and each Lender Agent, there shall have been no material adverse change in the Borrower’s (or the Servicer’s) underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence by the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ixviii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiiix) the Borrower Administrative Agent shall have received evidence that GCIC Senior Loan Fund LLC has a valid ownership interest in the agreed-upon initial pool at least $100,000,000 of Eligible Loan Assets (as set forth in Schedule IV equity and subordinated notes circled as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided, that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 1 contract
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Document shall have been duly executed by, and delivered to, the parties hereto and thereto thereto, and the Administrative Agent shall have received copies of the Advisory Agreements and such other documents, instruments, agreements agreements, certificates and legal opinions as any Lender the Administrative Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management any Borrower Party or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiii) (a) each of the Administrative Agent shall have received all documentation Borrower’s, Seller’s, Equityholder’s, Collateral Advisor’s and other information requested by Collateral Manager’s underwriting, servicing, collection, operating, and reporting procedures and systems are satisfactory to the Administrative Agent in its sole discretion or required by regulatory authorities and (b) the Collateral Sub-Advisor’s underwriting, servicing, collection, operating, and reporting procedures and systems solely with respect to the Equityholder are satisfactory to the Administrative Agent in its sole discretion;
(iv) a satisfactory review by the Administrative Agent of all organizational documents and material contracts of the Borrower, Seller, Equityholder, Collateral Advisor and Collateral Manager (including, without limitation, the Transferor Advisory Agreements);
(v) a satisfactory review by the Administrative Agent of business, financial, legal, tax and accounting due diligence relating to transactions contemplated hereby, each Borrower Party and the Servicer transactions contemplated hereunder are satisfactory to the Administrative Agent in its sole discretion;
(vi) in the reasonable judgment of the Administrative Agent and each Lender Agent, there not having been any change in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s entering into the transactions contemplated by the Transaction Documents or material disruption after December 31, 2014 in the financial, banking or commercial loan or capital markets generally;
(vii) the Administrative Agent and the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56;
(viii) a satisfactory due diligence review by the Administrative Agent of each Loan submitted for consideration in the initial Collateral Portfolio;
(ix) the Administrative Agent and each Institutional Lender shall have received each required approval (including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to from its internal credit committee);
(x) the Administrative Agent and each Lender the Lenders shall have received the fees (including reasonable and documented out-of-pocket reimbursable expenses and fees, disbursements and other charges of counsel to the Administrative Agent) to be received on the Closing Date referred to herein or in any other Transaction Document;
(viixi) since December 31, 2014, no material adverse change on has occurred in the business, assets, financial conditions or performance condition of the Servicer and its subsidiariesEquityholder, including the BorrowerSeller, on a consolidated basis, any Borrower Advisor or the Borrower or in any material portion of the assets in the initial proposed Eligible Loan Assets has occurredCollateral Portfolio;
(viiixii) the results Administrative Agent shall have received satisfactory evidence that the Seller, the Borrower and the Collateral Manager have obtained all required consents and approvals of Administrative Agent’s legal due diligence relating all Persons to the Transferorexecution, delivery and performance of this Agreement and the Borrower, other Transaction Documents to which it is a party and the Servicer, the Eligible Loan Assets and consummation of the transactions contemplated hereunder are hereby or thereby;
(xiii) the Collateral Manager and the Borrower shall each have delivered to the Administrative Agent a certificate as to whether such Person is Solvent in the form of Exhibit N;
(xiv) the Borrower and the Collateral Manager shall have delivered to the Administrative Agent a certification that no Unmatured Event of Default, Event of Default or Facility Amortization Event has occurred and is continuing;
(xv) the Administrative Agent shall have received (i) the customary executed legal opinion or opinions of Dechert LLP, counsel to the Borrower and the Collateral Manager, covering enforceability, grant and perfection of the security interests on the Collateral Portfolio and non-consolidation of the Borrower and (ii) bring-down legal opinions of Dechert LLP covering the enforceability of the Advisory Agreements as of the Closing Date, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion;
(xvi) all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and substance to the Administrative Agent;
(ixxvii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related such Lender;
(xxviii) Each Liquidity Bank whose commercial paper the UCC-1 financing statement is being rated by one or more Rating Agency in proper form for filing in the filing office of the appropriate jurisdiction;
(xix) the Administrative Agent shall have receivedreceived a secretary’s certificate of each of the Collateral Manager and the Borrower that includes a copy of the resolutions (or other authorizing instruments, if applicable), in form and substance satisfactory to the extent required under Administrative Agent, of the terms Board of Directors (or similar governing or managing body) of such CP Lender’s program documentsPerson authorizing (i) the execution, the written confirmation of each such Rating Agency that the execution delivery and delivery performance of this Agreement will not result and the other Transaction Documents to which it is a party, (ii) in a withdrawal or downgrading the case of the then-current rating Borrower, the borrowings contemplated hereunder, and (iii) in the case of such commercial paper the Borrower, the granting by such Rating Agency;
(xi) The Collection Account (including it of the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established Liens created pursuant to the Collection Account Agreement;
Transaction Documents, certified by the Secretary or an Assistant Secretary (xiior other authorized Person) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV such Person as of the Closing Date, which certification shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions, or other authorizing instruments, if applicable, thereby certified have not been amended, modified, revoked or rescinded;
(xx) the Administrative Agent shall have received a certification of each of the Collateral Manager and the Borrower, dated the Closing Date, as to the incumbency and signature of the officers of such Person executing any Transaction Document, which certification may be included in the certificate delivered in respect of such Person pursuant to Section 3.01(a)(xix) and satisfactory in form and substance to the Administrative Agent and shall be executed by an Authorized Person of such Person;
(xxi) the Administrative Agent shall have received true and complete copies of the organizational documents of each of the Collateral Manager and the Borrower, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary (or other authorized Person) of such Person, which certification shall be included in the certificate delivered in respect of such Person pursuant to Section 3.01(a)(xix) and shall be in form and substance satisfactory to the Administrative Agent;
(xxii) the Administrative Agent shall have received certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Collateral Manager and the Borrower (i) in the jurisdiction of its organization and (ii) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect;
(xxiii) the Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1 necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Transaction Documents shall have been completed;
(xxiv) the Administrative Agent shall have received the results of a recent search by a Person satisfactory to the Administrative Agent, of the UCC, judgment and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the results of such search shall be satisfactory to the Administrative Agent;
(xxv) the Borrower shall have received the executed legal opinion or opinions of Xxxxx Lord LLP, counsel to the Collateral Agent, the Collateral Custodian and the Account Bank, covering enforceability of the Transaction Documents to which the each such Person is a party; and
(xxvi) the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) shall have received the Initial Notice of Borrowing.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (FS Investment Corp III)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated The effectiveness of this Amendment is subject to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or unless specifically waived in writing by, by the Administrative Agent:Agent (the first date upon which all such conditions have been satisfied being herein called the (“Effective Date”)):
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documentsthis Amendment duly executed by the Administrative Agent, instrumentsthe Lenders and Borrower, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative AgentAgent and its legal counsel;
(iib) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by documents the Administrative Agent in its sole discretion or required by regulatory authorities may reasonably request with respect to any matter relevant to this Amendment or the Borrowertransactions contemplated hereby, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agentits legal counsel;
(viic) no material adverse change on Borrower shall have reimbursed the businessAdministrative Agent for all fees, assetscosts, financial conditions or performance of expenses and taxes incurred by the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurredAdministrative Agent in connection with this Amendment;
(viiid) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related LenderPrepaid Principal Amount;
(xe) Each Liquidity Bank whose commercial paper is being rated by one The representations and warranties contained herein shall be true and correct as of the date hereof and the representations and warranties contained in the Loan Agreement or more Rating Agency in the Loan Documents shall have receivedbe true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date hereof as though made on and as of such date, except to the extent required under the terms of that such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution representations and delivery of this Agreement will not result in a withdrawal warranties relate solely to an earlier date or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant as otherwise disclosed to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account AgreementLender on Schedule I attached hereto; and
(xiiif) No Event of Default other than the Borrower has a valid ownership interest in Potential Existing Default shall have occurred and be continuing and no Event of Default will result from the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and execution, delivery or performance of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedAmendment.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent has been fulfilled to the sole discretion of, or waived in writing by, satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Amendment shall have been duly executed byand delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof.
b. The Administrative Agent shall have received an updated Perfection Certificate dated as of the Eighth Amendment Effective Date.
c. The Agent shall have received evidence acceptable to it that all action on the part of the Loan Parties necessary for the valid execution, delivery and performance by the Loan Parties of this Amendment shall have been duly and effectively taken.
d. All necessary consents and approvals to this Amendment shall have been obtained.
e. Prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
f. Prior to and immediately after giving effect to this Amendment, (i) each of the representations and warranties of the Loan Parties contained in the Credit Agreement, any other Loan Document or in any document or instrument delivered pursuant to or in connection with the Loan Documents or this Amendment, are true and correct on and as of the effective date of this Amendment (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date), and delivered to, (ii) no Default or Event of Default exists on the parties hereto and thereto date hereof.
g. The Lenders and the Administrative Agent shall have received payment from the Borrower of all costs and expenses required to be paid pursuant to Section 4 of this Amendment.
h. The Lenders and the Administrative Agent shall have received payment from the Borrower of all fees required to be paid pursuant to the Fee Letter.
i. The Administrative Agent shall have received a Transaction Report reflecting the Borrowing Base as of the Eighth Amendment Effective Date (after giving effect to this Amendment).
j. The Administrative Agent shall have received executed legal opinions of Simpson, Thacher & Xxxxxxxx LLP, counsel to the Loan Parties, each addressed to the Administrative Agent and the Lenders, each in form and substance reasonably satisfactory to the Administrative Agent. Such legal opinions shall cover such matters incident to the transactions contemplated by this Amendment as the Administrative Agent may reasonably require.
k. The Administrative Agent shall have received such other documents, instruments, instruments and agreements and legal opinions as any Lender Agent shall it may reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Daterequest, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s 's or the Administrative Agent’s 's ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all written information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete true and correct in all material respects and not misleading in no such document or certificate contains any material respectmisstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not misleading; provided that, solely with respect to written or electronic information furnished by the Borrower or the Servicer which was provided to the Borrower or the Servicer from an Obligor with respect to a Loan Asset (or is derived therefrom), such information need only be accurate, true and correct to the knowledge of the Borrower or the Servicer;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent such Lender in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “"know your customer” " and anti-money laundering rules and regulationsAnti‑Money Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) at least five (5) days prior to the Closing Date, the Borrower shall deliver a Beneficial Ownership Certification;
(vi) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vii) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including in the Borrower's (or the Servicer's) underwriting, on a consolidated basisservicing, or any material portion collection, operating and reporting procedures and systems since the completion of due diligence by the initial proposed Eligible Loan Assets has occurredAdministrative Agent and each Lender;
(viii) the results of the Administrative Agent’s legal 's financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;; and
(ix) each the Borrower shall have paid in full all invoiced fees then required to be paid thereby, including all fees required hereunder and under the applicable Lender Fee Letters and the Collateral Agent and Collateral Custodian Fee Letter and shall have received a duly executed copy reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all reasonable and documented fees, costs and expenses of its Revolving Note, in a principal amount equal to closing the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required transactions contemplated hereunder and under the terms of such CP Lender’s program documentsother Transaction Documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account attorney fees and Interest Collection Account sub-accounts thereunder) has been established pursuant to any other legal and document preparation costs incurred by the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to Lenders and the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Administrative Agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be becomes effective upon, and no Lender shall be is obligated to make any Advance hereunder from and after the Closing DateAdvance, nor shall is any Lender, the Collateral Custodian, the Backup Servicer Calculation Agent or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, hereunder until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement all other Transaction Documents (including, without limitation, other than the assignment of Administrative Agent Fee Letter and the Contribution AgreementCollateral Custodian Fee Letter) and all other Transaction Documents agreements, instruments, certificates and all other agreements and opinions of counsel documents listed on Schedule I hereto or counterparts hereof or thereof shall II have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agentthereto;
(ii) all reasonable up-front expenses and fees (including reasonable and documented out-of-pocket legal fees, fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at or least three (3) Business Days prior to the Closing Date shall have been paid in full;
(iii) the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all other acts material respects (except that any representation qualified as to "materiality" or "Material Adverse Effect" shall be true and conditions correct in all respects as so qualified) (including, without limitation, as certified by the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable LawBorrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any Material Adverse Effect material adverse conditions on the Borrower or material disruption in such other transactions or that could seek or threaten any of the financialforegoing, banking and no law or commercial loan or capital markets generallyregulation is applicable which could reasonably be expected to have such effect;
(v) any and all information submitted no action, proceeding or investigation has been instituted or, to the Administrative Agent knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders' sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the Borrower, other Transaction Documents or the Transferor, consummation of the Servicer, Solar Management transactions contemplated hereby or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respectthereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB- or higher) from a Nationally Recognized Statistical Rating Organization, such as KBRA, and the Initial Lender shall have a received a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent shall have has received all documentation and other information requested by the Administrative Agent in its sole discretion acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower, the Transferor Borrower and the Servicer Calculation Agent under applicable “"know your customer” " and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Carlyle Secured Lending III)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Document shall have been duly executed by, and delivered to, the parties hereto and thereto thereto, and the Administrative Agent shall have received copies of the Advisory Agreements and such other documents, instruments, agreements agreements, certificates and legal opinions as any Lender the Administrative Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management any Borrower Party or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiii) the Administrative Agent shall have received all documentation each Borrower Party’s underwriting, servicing, collection, operating, and other information requested by reporting procedures and systems are satisfactory to the Administrative Agent in its sole discretion discretion;
(iv) a satisfactory review by the Administrative Agent of all organizational documents and material contracts of each Borrower Party (including, without limitation, the Advisory Agreements);
(v) a satisfactory review by the Administrative Agent of business, financial, legal, tax and accounting due diligence relating to transactions contemplated hereby, each Borrower Party and the transactions contemplated hereunder are satisfactory to the Administrative Agent in its sole discretion;
(vi) in the reasonable judgment of the Administrative Agent and each Lender Agent, there not having been any change in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s entering into the transactions contemplated by the Transaction Documents or material disruption after October 20, 2011 in the financial, banking or commercial loan or capital markets generally;
(vii) the Administrative Agent and the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information required by bank regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56;
(viii) a satisfactory due diligence review by the Administrative Agent of each Loan submitted for consideration in the initial Collateral Portfolio;
(ix) the Administrative Agent and each Institutional Lender shall have received each required approval (including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to from its internal credit committee);
(x) the Administrative Agent and each Lender the Lenders shall have received the fees (including fees, disbursements and other charges of counsel to the Administrative Agent) to be received on the Closing Date referred to herein or in any other Transaction Document;
(viixi) since October 20, 2011, no material adverse change on has occurred in the business, assets, financial conditions or performance condition of the Servicer and its subsidiariesEquityholder, including the BorrowerSeller, on a consolidated basis, any Borrower Advisor or the Borrower or in any material portion of the assets in the initial proposed Eligible Loan Assets has occurredCollateral Portfolio;
(viiixii) the results Administrative Agent shall have received satisfactory evidence that the Seller, the Borrower and the Collateral Manager have obtained all required consents and approvals of Administrative Agent’s legal due diligence relating all Persons to the Transferorexecution, delivery and performance of this Agreement and the Borrower, other Transaction Documents to which it is a party and the Servicer, the Eligible Loan Assets and consummation of the transactions contemplated hereunder are hereby or thereby;
(xiii) the Collateral Manager and the Borrower shall each have delivered to the Administrative Agent a certificate as to whether such Person is Solvent in the form of Exhibit P;
(xiv) the Borrower and the Collateral Manager shall have delivered to the Administrative Agent a certification that no Unmatured Event of Default, Event of Default or Collateral Control Event has occurred and is continuing;
(xv) the Administrative Agent shall have received (i) the customary executed legal opinion or opinions of Dechert LLP, counsel to the Borrower and the Collateral Manager, covering enforceability, grant and perfection of the security interests on the Collateral Portfolio and non-consolidation of the Borrower and (ii) bring-down legal opinions of Dechert LLP covering the enforceability of the Advisory Agreements as of the Closing Date, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion;
(xvi) all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and substance to the Administrative Agent;
(ixxvii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related such Lender;
(xxviii) Each Liquidity Bank whose commercial paper the UCC-1 financing statement is being rated by one or more Rating Agency in proper form for filing in the filing office of the appropriate jurisdiction;
(xix) the Administrative Agent shall have receivedreceived a secretary’s certificate of each of the Collateral Manager and the Borrower that includes a copy of the resolutions (or other authorizing instruments, if applicable), in form and substance satisfactory to the extent required under Administrative Agent, of the terms Board of Directors (or similar governing or managing body) of such CP Lender’s program documentsPerson authorizing (i) the execution, the written confirmation of each such Rating Agency that the execution delivery and delivery performance of this Agreement will not result and the other Transaction Documents to which it is a party, (ii) in a withdrawal or downgrading the case of the then-current rating Borrower, the borrowings contemplated hereunder, and (iii) in the case of such commercial paper the Borrower, the granting by such Rating Agency;
(xi) The Collection Account (including it of the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established Liens created pursuant to the Collection Account Agreement;
Transaction Documents, certified by the Secretary or an Assistant Secretary (xiior other authorized Person) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV such Person as of the Closing Date, which certification shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions, or other authorizing instruments, if applicable, thereby certified have not been amended, modified, revoked or rescinded;
(xx) the Administrative Agent shall have received a certificate of each of the Collateral Manager and the Borrower, dated the Closing Date, as to the incumbency and signature of the officers of such Person executing any Transaction Document, which certificate shall be which certification shall be included in the certificate delivered in respect of such Person pursuant to Section 3.1(a)(xi) and satisfactory in form and substance to the Administrative Agent and shall be executed by an Authorized Person of such Person;
(xxi) the Administrative Agent shall have received true and complete copies of the organizational documents of each of the Collateral Manager and the Borrower, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary (or other authorized Person) of such Person, which certification shall be included in the certificate delivered in respect of such Person pursuant to Section 3.1(a)(xix) and shall be in form and substance satisfactory to the Administrative Agent;
(xxii) the Administrative Agent shall have received certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Collateral Manager and the Borrower (i) in the jurisdiction of its organization and (ii) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect;
(xxiii) the Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1 necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Transaction Documents shall have been completed;
(xxiv) the Administrative Agent shall have received the results of a recent search by a Person satisfactory to the Administrative Agent, of the UCC, judgment and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the results of such search shall be satisfactory to the Administrative Agent; and
(xxv) the Borrower shall have received the executed legal opinion or opinions of Xxxxx Lord LLP, counsel to the Collateral Agent, the Collateral Custodian and the Account Bank, covering enforceability of the Transaction Documents to which the each such Person is a party.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Joinder shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of until the following conditions precedent, as determined in precedent have each been fulfilled to the sole discretion of, or waived in writing by, reasonable satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed effect and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all be in form and substance reasonably satisfactory to the Administrative Agent.
b. All action on the part of each New Facility Guarantor and the other Loan Parties necessary for the valid execution, delivery and performance by such New Facility Guarantor of this Joinder and all other documentation, instruments, and agreements required to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have been provided to the Administrative Agent.
c. Each New Facility Guarantor (and each other Loan Party, to the extent requested by the Administrative Agent) shall each have delivered the following to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:
i. Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization.
ii. A certificate of an authorized officer of the due adoption, continued effectiveness, and setting forth the text, of each corporate resolution adopted in connection with the assumption of obligations under the Credit Agreement and the other Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents.
iii. Execution and delivery by each New Facility Guarantor of such other documents, agreements and certificates as the Administrative Agent and each Lender Agent;the Collateral Agent may reasonably require.
(vii) no material adverse change on d. Upon the business, assets, financial conditions or performance reasonable request of the Servicer and its subsidiariesAdministrative Agent, including the Borrower, on Agents shall have received a consolidated basis, or any material portion favorable written legal opinion of the initial proposed Eligible Loan Assets has occurred;
(viii) Parties’ counsel addressed to the results of Administrative Agent’s legal due diligence Agents and the other Lenders, covering such matters relating to the TransferorNew Facility Guarantors, the Borrower, the Servicer, the Eligible Loan Assets and Documents and/or the transactions contemplated hereunder are satisfactory to thereby as the Agents shall reasonably request.
e. The Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy all documents and instruments, (including an authenticated record authorizing the Agents and their representatives to file such UCC financing statements as the Agents may determine to be appropriate), required by law or requested by the Administrative Agent or the Collateral Agent to create or perfect the first priority Lien (subject only to Permitted Encumbrances having priority by operation of its Revolving NoteApplicable Law) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, in a principal amount equal registered or recorded or other arrangements reasonably satisfactory to the Commitment of the related Lender;Agents.
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency f. The Loan Parties shall have received, executed and delivered to the extent required under the terms of Agents such CP Lender’s program additional documents, instruments, and agreements as the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Agents may reasonably request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Joinder to Loan Documents (Burlington Coat Factory Investments Holdings, Inc.)
Conditions Precedent to Effectiveness. This Amendment shall be effective as of the date (the “Amendment Effective Date”) when the Agent determines that the following conditions have been satisfied:
(a) This Agreement Agent shall be effective uponhave received, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer by original or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:electronic transmission (promptly followed by originals):
(i) Executed counterparts of this Agreement, Amendment from each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto Loan Parties and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative AgentLenders;
(ii) all reasonable up-front expenses Notes executed from the Company and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior other Borrower payable to the Closing Date shall have been paid in fullNew Lender;
(iiiA) From a Responsible Officer of each Loan Party organized under the laws of a jurisdiction located within the United States, a certificate including an incumbency certificate, dated the Amendment Effective Date, certifying as to the Organization Documents of such Loan Party, the resolutions of the governing body of such Loan Party, the good standing, existence or its equivalent of each Loan Party and the incumbency of the Responsible Officers of each such Loan Party and (B) to the extent requested by Agent, the equivalent of the foregoing from each Loan Party not organized under the laws of a jurisdiction located within the United States;
(iv) An opinion or opinions of counsel for the Loan Parties, dated the Amendment Effective Date and addressed to Agent and the Lenders, in form and substance acceptable to Agent.
(b) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior precedent to the execution, delivery and performance of this Agreement and all related Transaction Documents Amendment and to constitute the same a legal, valid and binding obligationsobligation of the parties, enforceable in accordance with their respective terms, its terms shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Lawapplicable laws;
(ivc) all documentation shall be reasonably satisfactory in form and substance to the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generallyAgent and its counsel;
(vd) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation upfront and other information requested by the Administrative Agent in its sole discretion fees or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulationsexpenses, including, without limitation, fees and expenses of counsel, required to be paid on or before the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent Amendment Effective Date shall have received a duly executed copy of its Revolving Notebeen paid, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiie) the Borrower has there shall not have occurred and be continuing a valid ownership interest in the agreed-upon initial pool Default or Event of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Default.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Joinder shall not be effective upon, and no Lender shall be obligated until each of the following conditions precedent have been fulfilled to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) a. This Joinder and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a Guaranty shall have been duly executed by, and delivered to, by the respective parties hereto and thereto hereto.
b. All action on the part of the New Borrower and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with Obligors necessary for the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the valid execution, delivery and performance by the New Borrower of this Agreement Joinder and all related Transaction Documents other documentation, instruments, and agreements required to constitute the same legal, valid and binding obligations, enforceable be executed in accordance with their respective terms, connection herewith shall have been done duly and performed effectively taken and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted evidence thereof reasonably satisfactory to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect been provided to the BorrowerAgent.
c. The New Borrower shall each have delivered the following to the Agent, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent Agent:
i. Certificate of legal existence and good standing of the New Borrower issued by the Secretary of State of the State of its incorporation or organization.
ii. A certificate of an authorized officer of the New Borrower in respect of the due adoption and continued effectiveness of each Lender Agent;corporate resolution adopted in connection with the assumption by the New Borrower of obligations under the Loan Agreement and the other Loan Documents, setting forth the text of each such resolution, and attesting to the true signatures of each Person authorized as a signatory of the New Borrower to any of the Loan Documents, together with true and accurate copies of all Organic Documents of the New Borrower.
(vii) no material adverse change iii. Perfection Certificate of the New Borrower in the form delivered by the Obligors on the businessClosing Date.
iv. Execution and delivery by the New Borrower of such other documents, assets, financial conditions or performance of agreements and certificates as the Servicer and its subsidiaries, including Agent may reasonably require in accordance with the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;Documents.
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender d. The Agent shall have received a duly executed copy written legal opinions of its Revolving Note, in a principal amount equal the Obligors’ counsels addressed to the Commitment Agent and the other Lenders, covering such matters relating to the New Borrower, the Loan Documents and/or the transactions contemplated thereby as the Agent shall reasonably request, it being understood that such opinions shall be substantively similar to the opinions of Obligors’ counsels delivered on the Closing Date pursuant to Section 6.1(g) of the related Lender;Loan Agreement.
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency e. The Agent shall have receivedreceived all documents and instruments (including UCC financing statements, agreements providing for Agent’s control over Deposit Accounts and Credit Card Notifications), required by law or reasonably requested by the Agent in accordance with the Loan Documents to create or perfect the first priority Lien (subject only to Permitted Liens having priority by operation of Applicable Law) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the extent required under reasonable satisfaction of the terms of such CP Lender’s program documents, Agent.
f. All reasonable and documented out-of-pocket expenses incurred by the written confirmation of each such Rating Agency that Agent in connection with the execution preparation and delivery negotiation of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account Joinder and related documents (including the Principal Collection Account reasonable and Interest Collection Account subdocumented fees and out-accounts thereunder) has been established pursuant of-pocket expenses of one legal counsel to the Collection Account Agreement;Agent) shall have been paid in full by the Borrowers.
(xii) g. The URCA Account has been established pursuant Agent shall have received copies of policies of insurance, be reasonably satisfied with the amount, types and terms and conditions of all insurance maintained by the New Borrower and have received certificates of insurance with endorsements naming the Agent, for the benefit of the Secured Parties, as loss payee or additional insured, as applicable, with respect to each insurance policy required to be maintained with respect to the URCA Account Agreement; and
(xiii) Collateral and otherwise in form and substance reasonably satisfactory to the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution Agent and delivery of this Agreement, each of the Borrower Lenders.
h. The Obligors shall have executed and the Servicer hereby certifies that each of the conditions precedent delivered to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedAgent such additional documents, instruments, and agreements as the Agent may reasonably request.
Appears in 1 contract
Samples: Joinder Agreement to Loan Agreement (Bon Ton Stores Inc)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s 's or the Administrative Agent’s 's ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrowerany Loan Party, the Transferor, Originator or the Servicer, Solar Management Servicer or any of their Affiliates is true, true and accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or such Lender and/or required by regulatory authorities with respect to the Borrowerany Loan Party, the Transferor Originator and the Servicer under applicable “"know your customer” " and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vi) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change in any Loan Party's (or the Servicer's) underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence by the Administrative Agent and each Lender;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of the Administrative Agent’s legal 's financial, legal, tax and accounting due diligence relating to the TransferorOriginator, the Borrowereach Loan Party, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiiviii) the Borrower has a valid ownership interest shall have paid in full all fees then required to be paid, including all fees required hereunder and under the agreed-upon initial pool applicable Lender Fee Letters and the Xxxxx Fargo Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of Eligible Loan Assets (as set forth in Schedule IV as of closing the Closing Date)transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment, consent or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Document shall have been duly executed by, and delivered to, the parties hereto and thereto thereto, and the Administrative Agent shall have received such other documents, instruments, agreements agreements, certificates and legal opinions as any Lender the Administrative Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date Administrative Agent shall have been paid in full;
(iii) all other acts and conditions (including, without limitationreceived satisfactory evidence that the Borrower, the obtaining of any necessary Transferor and the Servicer have obtained all required consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior all Persons to the execution, delivery and performance of this Agreement and all related the other Transaction Documents to which it is a party and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Lawconsummation of the transactions contemplated hereby or thereby;
(iviii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viv) any the Servicer and all information submitted the Borrower shall each have delivered to the Administrative Agent by a certificate as to whether such Person is Solvent in the Borrowerform of Exhibit N;
(v) the Borrower and the Servicer shall have delivered to the Administrative Agent a certification that no Unmatured Event of Default, the Transferor, the Servicer, Solar Management Event of Default or any of their Affiliates Servicer Default has occurred and is true, accurate, complete in all material respects and not misleading in any material respectcontinuing;
(vi) the Administrative Agent shall have received the executed legal opinion or opinions of Dechert LLP, counsel to the Borrower, the Transferor and the Servicer, covering due authorization, execution and delivery of, and enforceability of, all Transaction Documents, grant and perfection of the security interests on the Collateral Portfolio, true sale and non-consolidation of the Borrower, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion;
(vii) the Administrative Agent shall have received the executed legal opinion or opinions of Lxxxx Lord LLP, counsel to the Collateral Agent, the Collateral Custodian and the Account Bank, covering enforceability of the Transaction Documents to which each such Person is a party;
(viii) the Administrative Agent and the Lenders shall have received the fees (including fees, disbursements and other charges of counsel to the Administrative Agent) to be received on the Closing Date referred to herein or in any other Transaction Document;
(ix) the Administrative Agent and the Lenders shall have received, sufficiently in advance of the Closing Date, (i) all documentation and other information requested required by the Administrative Agent or such Lender in its sole discretion or required by and/or bank regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agentthe Lenders and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower;
(viix) no material adverse change on the businessall corporate and other proceedings, assetsand all documents, financial conditions or performance of the Servicer instruments and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s other legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and matters in connection with the transactions contemplated hereunder are by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and substance to the Administrative Agent;
(ixxi) each applicable Lender the Administrative Agent or the Collateral Agent shall have received UCC-1 financing statements (i) naming the Borrower as debtor and in proper form for filing in the filing office of the appropriate jurisdiction that, when filed, together with the Securities Account Control Agreement, are effective to perfect the Collateral Agent’s security interest in the Collateral Portfolio such that the Collateral Agent’s security interest in the Collateral Portfolio ranks senior (subject only to Permitted Liens) to that of any other creditors of the Borrower (whether now existing or hereafter acquired) and (ii) naming the Transferor as debtor, the Borrower as assignor and the Collateral Agent, on behalf of the Secured Parties, as secured party/total assignee and in proper form for filing in the filing office of the appropriate jurisdiction;
(xii) the Administrative Agent shall have received a duly executed copy certificate of its Revolving Notethe Servicer and the Borrower, in a principal amount equal dated the Closing Date, as to the Commitment incumbency and signature of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency officers of such Person executing any Transaction Document, which certificate shall have received, be satisfactory in form and substance to the extent required under the terms Administrative Agent and shall be executed by a Responsible Officer (or other authorized Person) of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating AgencyPerson;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in Administrative Agent shall have received true and complete copies of the agreed-upon initial pool organizational documents of Eligible Loan Assets (as set forth in Schedule IV the Servicer and the Borrower, certified as of the Closing Date).Date as complete and correct copies thereof by the secretary or an assistant secretary (or other authorized Person) of such Person, which certification shall be in form and substance satisfactory to the Administrative Agent;
(bxiv) By the Administrative Agent shall have received certificates dated as of a recent date from the secretary of state or other appropriate authority, evidencing the good standing of the Servicer and the Borrower (i) in the jurisdiction of its execution organization, formation or incorporation and (ii) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify could not be reasonably expected to have a Material Adverse Effect;
(xv) the Administrative Agent shall have received complete and correct copies of the resolutions of the Borrower, approving and authorizing the execution, delivery and performance by such Person of this Agreementthe Transaction Documents to which it is a party, each certified as of the Closing Date as complete and correct copies thereof by the secretary or an assistant secretary (or other authorized Person) of such Person, which certification shall be in form and substance satisfactory to the Administrative Agent;
(xvi) the Administrative Agent shall have received the results of a recent search by a Person reasonably satisfactory to the Administrative Agent, of the UCC, judgment and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the Servicer hereby certifies that each results of the conditions precedent such search shall be reasonably satisfactory to the effectiveness Administrative Agent; and
(xvii) the Borrower shall have paid in full all fees then required to be paid, including all fees required hereunder and under the applicable Lender Fee Letter, the Administrative Agent Fee Letter, the Wxxxx Fargo Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of this Agreement set forth in this Section 3.01 have been satisfiedclosing the transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent.
Appears in 1 contract
Samples: Loan and Servicing Agreement (FS Investment Corp II)
Conditions Precedent to Effectiveness. (a) This Agreement shall be become effective upon, on and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction as of the following conditions precedent, as determined in first date (the sole discretion of, or waived in writing by"Effective Date") after it shall have been executed by the Borrowers, the Administrative Agent, each Initial Lender, each PI Lender and the Initial Issuing Bank and on which the following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since December 31, 2004.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting Paxar or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement could be reasonably likely to have a Material Adverse Effect or (including, without limitation, ii) purports to adversely affect the assignment Facilities or the consummation of the Contribution Agreementtransactions contemplated hereby.
(c) All governmental and all third party consents and approvals necessary in connection with the Facilities and the other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof transactions contemplated hereby shall have been duly executed byobtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and delivered tono law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) Paxar shall have notified each Lender Party and the Administrative Agent in writing as to the proposed Effective Date.
(e) Paxar shall have paid all accrued fees and expenses of the Administrative Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Administrative Agent).
(f) On the Effective Date, the parties hereto and thereto following statements shall be true and the Administrative Agent shall have received for the account of each Lender Party a certificate signed by a duly authorized officer of Paxar dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender Party:
(i) A copy of the charter, by-laws, and other constituent documents of each Loan Party party to a Loan Document delivered on the Effective Date.
(ii) Certified resolutions of the Board of Directors of Paxar and each such other documentsLoan Party and, instrumentsto the extent appropriate, agreements certified resolutions of the shareholders of any such Loan Party, in form and legal opinions substance reasonably satisfactory to the Administrative Agent.
(iii) A certificate of the Secretary, Assistant Secretary or Managing Director of Paxar and each such other Loan Party certifying the names and true signatures of the officers of Paxar and such other Loan Party authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder and certifying that the charter, by-laws, constituent documents and resolutions referred to in subclauses 3.01(g )(i) and (ii) are in full force and effect and have not been amended or modified.
(iv) A favorable opinion of Xxxxxx X. Xxxxx, Esq., General Counsel of Paxar, substantially in the form of Exhibit E hereto and as to such other matters as any Lender Party through the Administrative Agent shall may reasonably request in connection with the transactions contemplated by this Agreementrequest.
(v) Favorable opinions of counsel for each Non-US Borrower and, on or prior to the Closing Dateif applicable, each Foreign Guarantor, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;.
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably Evidence satisfactory to the Administrative Agent of termination of the Existing Credit Agreement and each Lender Agent;that all amounts payable thereunder have been paid in full and all commitments thereunder have been terminated, except that the Existing Letters of Credit shall be deemed Letters of Credit hereunder.
(vii) no material adverse change on A Guaranty in substantially the business, assets, financial conditions or performance form of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;Subsidiary Guaranty duly executed by each Subsidiary Guarantor.
(viii) If applicable, a Guaranty in substantially the results form of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a Foreign Subsidiary Guaranty duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Foreign Guarantor.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Paxar Corp)
Conditions Precedent to Effectiveness. (a) This Agreement Second Amendment shall not -------------------------------------- be effective upon, and no Lender shall be obligated until each of the following conditions precedent have been fulfilled to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Second Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and, shall be in full force and thereto effect and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each be in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals Agent and the making Lenders.
b. All action on the part of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the Borrowers necessary for the valid execution, delivery and performance by the Borrowers of this Agreement Second Amendment shall have been duly and all related Transaction effectively taken and evidence thereof satisfactory to the Agent shall have been provided to the Agent.
c. The Agent, on behalf of the Lenders, shall have received duly executed originals of each of the agreements, opinions, reports, approvals, consents, certificates and other documents set forth on Rider A hereto.
d. Except for (i) the filing of Uniform Commercial Code financing statements and recordation of amendments to the Mortgages, (ii) consents or authorizations which have been obtained or filings which have been made, and which in either case are in full force and effect or (iii) consents or authorizations the failure to obtain or filings the failure to make could not reasonably be expected to have a Material Adverse Effect, no consent or authorization of, permit from, filing with or other act by or in respect of, any Governmental Authority or any other Person shall be required in connection with the transactions contemplated hereunder, the grant of the Liens pursuant to the Credit Documents, or the continuing operations of the Borrower, the enforcement of the Agent's or the Lenders' rights under the Credit Documents, or with the execution, delivery, performance, validity or enforceability of the Credit Agreement, the other Credit Documents, the Indenture or any other documents executed in connection herewith or therewith.
e. The Collateral Documents and shall be effective to constitute create in favor of the same Agent for the benefit of the Lenders legal, valid and binding obligationsenforceable first (except for Liens permitted under Section 9.5 of the Credit Agreement which are entitled to priority under applicable law) security and mortgage interests in the Collateral. All filings, enforceable recordings, deliveries of instruments and other actions necessary or desirable in accordance with their respective terms, the opinion of the Agent to protect and preserve such security and mortgage interests shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative duly effected. The Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all evidence thereof in form and substance reasonably satisfactory to the Administrative Agent.
f. The Borrower shall have paid to the Agent and each Lender Agent;
(viii) no material adverse change on an amendment fee, for the business, assets, financial conditions or performance pro rata account of the Servicer and its subsidiaries, including the Borrower, Lenders based on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Notetheir respective Commitment Percentages, in a principal an amount equal to the Commitment 0.075% of the related Lender;
total Commitments, and (xii) Each Liquidity Bank whose commercial paper is being rated by one an execution fee, for the account of the Lenders executing this Second Amendment on or more Rating Agency shall have received, prior to the extent required under the terms of such CP Lender’s program documentseffective date hereof, the written confirmation in an amount equal to 0.125% of each such Rating Agency that the Lender's Commitment. The amendment fee and execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-fee shall be fully earned upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 Second Amendment and shall not be subject to refund or rebate under any circumstances.
g. The Borrower shall have been satisfiedprovided such additional instruments and documents to the Agent as the Agent and Agent's counsel may have reasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Wickes Inc)
Conditions Precedent to Effectiveness. (a) This Notwithstanding the date of execution or delivery of this Agreement, this Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, upon the satisfaction of the following conditions precedent(the “Sixth Amendment Effective Date”), as determined each of which shall be in the form and substance satisfactory to Lenders in Lenders’ sole discretion of, or waived in writing by, the Administrative Agentand absolute discretion:
10.1 Borrower shall have delivered to Agent, and Agent shall have accepted, an executed original of this Agreement;
10.2 Borrower shall have paid to Agent, for the benefit of the Lenders, (i) the costs and expenses of Agent and the Lenders incurred by it in connection with the transactions contemplated hereby and (ii) the reasonable legal costs of Agent and the Lenders in connection with the preparation and negotiation of this Agreement;
10.3 All representations and warranties made by Borrower under this Agreement shall be true and correct in all material respects (except to the extent already qualified by materiality, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment in which case they shall be true and correct in all respects) as of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed byrespective dates, and delivered toto the extent, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request indicated in Section 7 above;
10.4 All corporate proceedings taken in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form Agreement and substance other legal matters incident thereto shall be satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date 10.5 Borrower shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required delivered to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borroweraccepted, the Transferor unconditional guaranty, guarantor certification and security agreement, in the Servicer under applicable “know your customer” forms of Exhibits A, B and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory C to the Administrative Agent and each Lender Agentthis Amendment duly executed by ReserveAmerica Inc.;
(vii) no material adverse change on the business10.6 Borrower shall have delivered to Agent, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a accepted, the acknowledgment and reaffirmation of guaranty in the form of Exhibit D to this Amendment duly executed copy of its Revolving Noteby Automated License Systems, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account AgreementInc.; and
(xiii) the 10.7 Borrower has shall have delivered to Agent, and Agent shall have accepted, a valid ownership interest Warrant to purchase Common Stock of Borrower, in the agreed-upon initial pool of Eligible Loan Assets (form attached hereto as set forth in Schedule IV as of the Closing Date)Exhibit E, duly executed by Borrower.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. of Section
Section 2.01 of this Agreement shall become --------------- effective on and as of the first date (the "Effective Date") -------------- on which the following conditions precedent have been satisfied:
(a) This Agreement There shall be effective uponhave occurred no Material Adverse Change since December 28, and 1996.
(b) There shall exist no Lender shall be obligated to make action, suit, investigation, litigation or proceeding affecting the Borrower or any Advance hereunder from and after the Closing Dateof its Subsidiaries pending or threatened before any court, nor shall any Lender, the Collateral Custodian, the Backup Servicer governmental agency or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this AgreementAgreement or any Note or the consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, incorrect or incomplete in any material respect; without limitationlimiting the generality of the foregoing, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Lenders shall have been duly executed bygiven such access to the management, records, books of account, contracts and delivered to, properties of the parties hereto Borrower and thereto and the Administrative Agent its Subsidiaries as they shall have received such other documents, instruments, agreements requested.
(d) All governmental and legal opinions as any Lender Agent shall reasonably request third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agents in writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of the Agents and the Lenders (including the accrued fees and expenses of counsel to the Agents).
(g) On the Effective Date, the following statements shall be true and the Agents shall have received for the account of each Lender a certificate signed by this Agreementa duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(h) The Agents shall have received on or prior to before the Closing DateEffective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent;Agents and in sufficient copies for each Lender:
(i) The Guarantee Agreement, duly executed by each Guarantor existing on the Effective Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement, certified copies of the resolutions of the Board of Directors of each Guarantor approving the Guarantee Agreement and of all reasonable up-front expenses documents evidencing other necessary corporate action and fees (including legal feesgovernmental approvals, any fees required under if any, with respect to this Agreement and the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;other Loan Documents.
(iii) all A certificate of the Secretary or an Assistant Secretary of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower or such Guarantor, as applicable, authorized to sign this Agreement, each other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals Loan Document to which it is a party and the making of any required filings, recordings or registrations) required other documents to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;delivered hereunder or thereunder.
(iv) A favorable opinion of Paul W. Heldman, Vice Xxxxxxxxx, Secretary and General Counsel for the Borrower, substantially in the reasonable judgment form of Exhibit D hereto and as to such other matters as any Lender through the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Agents may reasonably request.
(v) any A favorable opinion of Shearman & Sterling, counsel for the Agents, in form and all information submitted substance satisfactory to the Administrative Agent by Agents.
(i) The termination of the commitments of the lenders and the payment in full of all Debt outstanding under (i) the Senior Competitive Advance and Revolving Credit Agreement dated as of July 19, 1994 among the Borrower, certain of its Subsidiaries, the lenders parties thereto, Chase, as swing line bank, issuing bank and administrative agent, and Citibank, as swing line bank, administrative agent and paying agent, and (ii) the Credit Agreement dated as of December 13, 1996 among the Borrower, the Transferorbanking institutions parties thereto, the ServicerThe Bank of New York, Solar Management or any of their Affiliates is trueas agent, accurateand BNY Capital Markets, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the BorrowerInc., the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)arranging agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Kroger Co)
Conditions Precedent to Effectiveness. (a) This Notwithstanding the date of execution or delivery of this Agreement, this Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, upon the satisfaction of the following conditions precedent(the “Effective Date”), as determined each of which shall be in the form and substance satisfactory to Lender in Lender’s sole discretion of, or waived in writing by, the Administrative Agentand absolute discretion:
9.1 Borrowers shall have delivered to Agent, and Agent shall have accepted, an executed original of this Agreement;
9.2 Borrowers shall have delivered to Agent, and Agent shall have accepted, an executed copy of the Senior Loan Agreement;
9.3 Borrowers shall have delivered to Agent, and Agent shall have accepted, an executed copy of a secured Guaranty in favor of Agent, for the benefit of the Lenders, in form and substance acceptable to Agent by (i) InfoSpherix Incorporated and (ii) Active Registration, LLC;
9.4 Borrowers shall have paid to Agent, for the benefit of the Lenders, (i) the costs and expenses of Agent and the Lenders incurred by it in connection with the transactions contemplated hereby and (ii) the reasonable legal costs of Agent and the Lenders in connection with the preparation and negotiation of this Agreement;
9.5 All representations and warranties made by Borrower under this Agreement shall be true and correct in all material respects (except to the extent already qualified by materiality, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment in which case they shall be true and correct in all respects) as of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed byrespective dates, and delivered toto the extent, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request indicated in Section 6 above; and
9.6 All corporate proceedings taken in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form Agreement and substance other legal matters incident thereto shall be satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective uponPrior to or concurrently with the effectiveness of the Restructuring Transactions, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof precedent shall have been duly executed by, and delivered to, the parties hereto and thereto satisfied: o The Term Loan Paydown and the Administrative Agent Repurchase shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent been consummated (or shall reasonably request in connection be consummated substantially concurrent with the transactions contemplated by this Agreement, on or prior to effectiveness of the Closing Date, each in form and substance Restructuring Transactions). o The Restructured Loan Documentation shall be satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees Lenders in their discretion (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities specifically with respect to the Borrowerrelative rights of the holders of Term A Loans and Term B Loans) and duly executed copies of the Restructured Loan Documentation shall have been delivered by the Credit Parties. o No default or event of default shall exist under the Restructured Loan Documentation before and after giving effect to the Restructuring Transactions, except for (i) the Transferor defaults or events of default that constitute the Specified Forbearance Items under and the Servicer under applicable “know your customer” as defined in that certain Fourth Forbearance Agreement and anti-money laundering rules and regulationsAmendment No. 1 to Credit Agreement dated as of May 7, 2009, as amended, including, without limitation, as amended by that certain Letter Agreement dated as of June 5, 2009, in each case, by and among the USA PATRIOT ActCompany, the Guarantors, the Agent and the lenders party thereto, which shall be waived concurrently with the execution of the Restructured Loan Documentation, and (ii) any other default or event of default that is waived by the Lenders in writing in their discretion concurrently with the execution of the Restructured Loan Documentation. o The representations and warranties of each Credit Party under the Restructured Loan Documentation shall be true and correct in all in form material respects immediately prior to, and substance reasonably satisfactory after giving effect to, the effectiveness of the Restructuring Transactions, except (i) to the Administrative Agent extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and each Lender Agent;
correct in all material respects as of such date, and (viiii) no that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects, subject to the materiality qualification contained therein. o No material adverse change on since December 31, 2008 with respect to (a) the business, assets, property, condition (financial conditions or performance other), results of operations or prospects of the Servicer and its subsidiariesBorrower or the Guarantors (taken as a whole), including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery the validity or enforceability of this Agreement, each any of the Borrower and Restructured Loan Documentation or the Servicer hereby certifies that each rights or remedies of the conditions precedent to Agent, the effectiveness Lenders or the other secured parties thereunder, or (c) the validity, perfection or priority of this Agreement set forth the liens upon the Collateral in this Section 3.01 favor of the Agent for the benefit of the secured parties, shall have been satisfiedoccurred.
Appears in 1 contract
Samples: Credit Agreement (Haights Cross Communications Inc)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrowerany Loan Party, the Transferor, Originator or the Servicer, Solar Management Servicer or any of their Affiliates is true, true and accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or such Lender and/or required by regulatory authorities with respect to the Borrowerany Loan Party, the Transferor Originator and the Servicer under applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vi) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change in any Loan Party’s (or the Servicer’s) underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence by the Administrative Agent and each Lender;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of the Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the TransferorOriginator, the Borrowereach Loan Party, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiiviii) the Borrower has a valid ownership interest shall have paid in full all fees then required to be paid, including all fees required hereunder and under the agreed-upon initial pool applicable Lender Fee Letters and the Wxxxx Fargo Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of Eligible Loan Assets (as set forth in Schedule IV as of closing the Closing Date)transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment, consent or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Conditions Precedent to Effectiveness. The obligations of the parties hereto set forth in Sections 1 and 2 hereof shall become effective immediately upon the date (athe “Effective Date”) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after when the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction last of all of the following conditions precedent, as determined in shall first have been satisfied (which may be satisfied concurrently with the sole discretion of, or waived in writing by, the Administrative Agent:Effective Date):
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto shall have executed and thereto delivered this Agreement and the Administrative Agent Assignment Agreement;
(b) Fortress shall have received such from PWB copies of all of the Loan Documents and subordination agreements existing on the Effective Date, which Fortress acknowledges have been received;
(c) PWB shall have received (or shall have received evidence that substantially concurrently with the Effective Date PWB will receive) from the Borrower payment in immediately available funds of all reasonable costs and expenses, and all fees and other documentsamounts due and payable to it as the Existing Agent through the Effective Date in accordance with the terms of the Loan Documents and this Agreement (including reasonable fees and expenses of counsel);
(d) the Borrower shall have reimbursed the Successor Agent (or shall have provided evidence that substantially concurrently with the Effective Date Successor Agent will be reimbursed) for all reasonable fees, instruments, agreements costs and legal opinions as any Lender Agent shall reasonably request out-of-pocket expenses incurred by it in connection with the transactions contemplated by this Agreementpreparation, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agencyand any related documents (including reasonable attorneys’ fees);
(xie) The Collection Account all Letters of Credit outstanding on the Effective Date (including if any) shall have been cash collateralized and the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has obligation of the Lenders to make further Revolving Loans shall have been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreementterminated; and
(xiiif) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as Each of the Closing Date).
(b) By its execution and delivery of this AgreementObligors, each of the Borrower Successor Agent and the Servicer hereby certifies that each of Lenders shall have entered into the conditions precedent to Reaffirmation Agreement and Omnibus Amendment and the effectiveness of this Agreement set forth in this Section 3.01 Closing Date shall have been satisfiedoccurred thereunder.
Appears in 1 contract
Samples: Resignation and Assignment Agreement (New Beginnings Acquisition Corp.)
Conditions Precedent to Effectiveness. (a) This Agreement Joinder shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of until the following conditions precedent, as determined in precedent have each been fulfilled to the sole discretion of, or waived in writing by, reasonable satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed effect and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all be in form and substance reasonably satisfactory to the Administrative Agent.
b. All action on the part of the New Facility Guarantor and the other Loan Parties necessary for the valid execution, delivery and performance by the New Facility Guarantor of this Joinder and all other documentation, instruments, and agreements required to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have been provided to the Administrative Agent.
c. The New Facility Guarantor (and each other Loan Party, to the extent requested by the Administrative Agent) shall each have delivered the following to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:
i. Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization.
ii. A certificate of an authorized officer of the due adoption, continued effectiveness, and setting forth the text, of each corporate resolution adopted in connection with the assumption of obligations under the Credit Agreement and the other Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents.
iii. Execution and delivery by the New Facility Guarantor of such other documents, agreements and certificates as the Administrative Agent and each Lender Agent;the Collateral Agent may reasonably require.
(vii) no material adverse change on d. Upon the business, assets, financial conditions or performance reasonable request of the Servicer and its subsidiariesAdministrative Agent, including the Borrower, on Agents shall have received a consolidated basis, or any material portion favorable written legal opinion of the initial proposed Eligible Loan Assets has occurred;
(viii) Parties’ counsel addressed to the results of Administrative Agent’s legal due diligence Agents and the other Lenders, covering such matters relating to the TransferorNew Facility Guarantor, the Borrower, the Servicer, the Eligible Loan Assets and Documents and/or the transactions contemplated hereunder are satisfactory to thereby as the Agents shall reasonably request.
e. The Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy all documents and instruments, (including an authenticated record authorizing the Agents and their representatives to file such UCC financing statements as the Agents may determine to be appropriate), required by law or requested by the Administrative Agent or the Collateral Agent to create or perfect the first priority Lien (subject only to Permitted Encumbrances having priority by operation of its Revolving NoteApplicable Law) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, in a principal amount equal registered or recorded or other arrangements reasonably satisfactory to the Commitment of the related Lender;Agents.
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency f. The Loan Parties shall have received, executed and delivered to the extent required under the terms of Agents such CP Lender’s program additional documents, instruments, and agreements as the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Agents may reasonably request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Joinder to Loan Documents (Burlington Coat Factory Investments Holdings, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Document shall have been duly executed by, and delivered to, the parties hereto and thereto thereto, and the Administrative Agent shall have received such other documents, instruments, agreements agreements, certificates and legal opinions as any Lender the Administrative Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date Administrative Agent shall have been paid in full;
(iii) all other acts and conditions (including, without limitationreceived satisfactory evidence that the Borrower, the obtaining of any necessary Transferor and the Servicer have obtained all required consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior all Persons to the execution, delivery and performance of this Agreement and all related the other Transaction Documents to which it is a party and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Lawconsummation of the transactions contemplated hereby or thereby;
(iviii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viv) any the Servicer and all information submitted the Borrower shall each have delivered to the Administrative Agent by a certificate as to whether such Person is Solvent in the Borrowerform of Exhibit N;
(v) the Borrower and the Servicer shall have delivered to the Administrative Agent a certification that no Unmatured Event of Default, the Transferor, the Servicer, Solar Management Event of Default or any of their Affiliates Servicer Default has occurred and is true, accurate, complete in all material respects and not misleading in any material respectcontinuing;
(vi) the Administrative Agent shall have received the executed legal opinion or opinions of Dechert LLP, counsel to the Borrower, the Transferor and the Servicer, covering due authorization, execution and delivery of, and enforceability of, all Transaction Documents, grant and perfection of the security interests on the Collateral Portfolio, true sale and non-consolidation of the Borrower, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion;
(vii) the Administrative Agent shall have received the executed legal opinion or opinions of Lxxxx Lord LLP, counsel to the Collateral Agent, the Collateral Custodian and the Account Bank, covering enforceability of the Transaction Documents to which each such Person is a party;
(viii) the Administrative Agent and the Lenders shall have received the fees (including fees, disbursements and other charges of counsel to the Administrative Agent) to be received on the Closing Date referred to herein or in any other Transaction Document;
(ix) the Administrative Agent and the Lenders shall have received, sufficiently in advance of the Closing Date, (i) all documentation and other information requested required by the Administrative Agent or such Lender in its sole discretion or required by and/or bank regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulationsregulationsAnti-Money Laundering Laws, including, without limitation, including the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agentthe Lenders and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower;
(viix) no material adverse change on the businessall corporate and other proceedings, assetsand all documents, financial conditions or performance of the Servicer instruments and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s other legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and matters in connection with the transactions contemplated hereunder are by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and substance to the Administrative Agent;
(ixxi) each applicable Lender the Administrative Agent or the Collateral Agent shall have received UCC-1 financing statements (i) naming the Borrower as debtor and in proper form for filing in the filing office of the appropriate jurisdiction that, when filed, together with the Securities Account Control Agreement, are effective to perfect the Collateral Agent’s security interest in the Collateral Portfolio such that the Collateral Agent’s security interest in the Collateral Portfolio ranks senior (subject only to Permitted Liens) to that of any other creditors of the Borrower (whether now existing or hereafter acquired) and (ii) naming the Transferor as debtor, the Borrower as assignor and the Collateral Agent, on behalf of the Secured Parties, as secured party/total assignee and in proper form for filing in the filing office of the appropriate jurisdiction;
(xii) the Administrative Agent shall have received a duly executed copy certificate of its Revolving Notethe Servicer and the Borrower, in a principal amount equal dated the Closing Date, as to the Commitment incumbency and signature of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency officers of such Person executing any Transaction Document, which certificate shall have received, be satisfactory in form and substance to the extent required under the terms Administrative Agent and shall be executed by a Responsible Officer (or other authorized Person) of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating AgencyPerson;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in Administrative Agent shall have received true and complete copies of the agreed-upon initial pool organizational documents of Eligible Loan Assets (as set forth in Schedule IV the Servicer and the Borrower, certified as of the Closing Date).Date as complete and correct copies thereof by the secretary or an assistant secretary (or other authorized Person) of such Person, which certification shall be in form and substance satisfactory to the Administrative Agent;
(bxiv) By the Administrative Agent shall have received certificates dated as of a recent date from the secretary of state or other appropriate authority, evidencing the good standing of the Servicer and the Borrower (i) in the jurisdiction of its execution organization, formation or incorporation and (ii) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify could not be reasonably expected to have a Material Adverse Effect;
(xv) the Administrative Agent shall have received complete and correct copies of the resolutions of the Borrower, approving and authorizing the execution, delivery and performance by such Person of this Agreementthe Transaction Documents to which it is a party, each certified as of the Closing Date as complete and correct copies thereof by the secretary or an assistant secretary (or other authorized Person) of such Person, which certification shall be in form and substance satisfactory to the Administrative Agent;
(xvi) the Administrative Agent shall have received the results of a recent search by a Person reasonably satisfactory to the Administrative Agent, of the UCC, judgment and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the Servicer hereby certifies that each results of the conditions precedent such search shall be reasonably satisfactory to the effectiveness Administrative Agent; and
(xvii) the Borrower shall have paid in full all fees then required to be paid, including all fees required hereunder and under the applicable Lender Fee Letter, the Administrative Agent Fee Letter, the Wxxxx Fargo Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of this Agreement set forth in this Section 3.01 have been satisfiedclosing the transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent has been fulfilled to the sole discretion of, or waived in writing by, satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and thereto and the hereto. The Administrative Agent shall have received a fully executed copy hereof and of each other document required hereunder.
b. The Administrative Agent shall have received an Acknowledgement and Reaffirmation of Subordination Agreement from Eastward Fund Management, LLC, duly executed by each party thereto;
c. The Administrative Agent shall have received an Acknowledgement and Reaffirmation of Subordination Agreement in relation to that certain Subordination Agreement dated March 21, 2017 by and between the Creditors (as defined therein) and Administrative Agent, from the Creditors (as defined therein), duly executed by each party thereto;
d. All necessary consents and approvals to authorize this Amendment shall have been obtained by the applicable Loan Parties.
e. No Default or Event of Default shall have occurred and be continuing.
f. After giving effect to this Amendment, each the representations and warranties made by each Loan Party herein and in the Credit Agreement and the other Loan Documents (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of the date hereof, as though made on such date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date.
g. The Administrative Agent shall have received all fees, costs and expenses required to be paid on the Third Amendment Effective Date pursuant to Section 7 of this Amendment (including the reasonable and documented fees and disbursements of legal counsel required to be paid thereunder which have been invoiced to Borrowers prior to the date hereof).
h. All other documents, instruments, agreements documents and legal opinions as any Lender Agent shall reasonably request matters in connection with the transactions contemplated by this AgreementAmendment shall have been delivered, on executed, or prior to the Closing Date, each recorded and shall be in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)discretion.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be becomes effective upon, and no Lender shall be is obligated to make any Advance hereunder from and after the Closing DateAdvance, nor shall is any Lender, the Collateral Custodian, the Backup Servicer Calculation Agent or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, hereunder until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements agreements, instruments, certificates and opinions of counsel other documents listed on Schedule I hereto or counterparts hereof or thereof shall II have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agentthereto;
(ii) all reasonable up-front up‐front expenses and fees (including reasonable and documented out‐of‐pocket legal fees, fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at or least three (3) Business Days prior to the Closing Date shall have been paid in full;
(iii) the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all other acts material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and conditions correct in all respects as so qualified) (including, without limitation, as certified by the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable LawBorrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any Material Adverse Effect material adverse conditions on the Borrower or material disruption in such other transactions or that could seek or threaten any of the financialforegoing, banking and no law or commercial loan or capital markets generallyregulation is applicable which could reasonably be expected to have such effect;
(v) any and all information submitted no action, proceeding or investigation has been instituted or, to the Administrative Agent knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the Borrower, other Transaction Documents or the Transferor, consummation of the Servicer, Solar Management transactions contemplated hereby or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respectthereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB‐ or higher) from an Acceptable Rating Agency, such as KBRA, and the Initial Lender shall have a received a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent shall have has received all documentation and other information requested by the Administrative Agent in its sole discretion acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower, the Transferor Borrower and the Servicer Calculation Agent under applicable “know your customer” and anti-money anti‐money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) This Agreement The Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested.
(b) The Borrower shall have paid all accrued fees and agreed expenses of the Agent, the Arrangers and the Lenders, including but not limited to all fees payable pursuant to the Fee Letter, and the reasonable accrued fees and expenses of counsel to the Agent that have been invoiced at least one Business Day prior to the Effective Date.
(c) On the Effective Date, the following statements shall be effective upontrue and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, and no Lender shall be obligated to make any Advance hereunder from and after dated the Closing Effective Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentstating that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment The representations and warranties contained in Section 4.01 are true and correct on and as of the Contribution Agreement) Effective Date, both before and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, after giving effect to the parties hereto and thereto Initial Borrowing and the Administrative application of the proceeds thereof, as though made on and as of such date; and
(ii) No event has occurred and is continuing, or would result from the Initial Borrowing or the application of the proceeds thereof, that constitutes a Default.
(d) The Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender the Notice of Initial Borrowing pursuant to Section 2.02.
(e) The Agent shall reasonably request in connection with the transactions contemplated by this Agreement, have received on or prior to before the Closing DateEffective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent;Agent and the Lenders:
(i) Receipt by the Agent of executed counterparts of this Agreement properly executed by a duly authorized officer of the Borrower and by each Lender.
(ii) all reasonable up-front expenses and fees (including legal feesThe Notes, any fees required under the Fee Letters) that are invoiced at or prior payable to the Closing Date shall have been paid in full;order of the Lenders to the extent requested by any Lender pursuant to Section 2.14(a).
(iii) all other acts and conditions (including, without limitation, The articles of incorporation of the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required Borrower certified to be done true and performed complete as of a recent date by the appropriate governmental authority of the state or other jurisdiction of its incorporation and certified by a secretary, assistant secretary or associate secretary of the Borrower to have happened prior to be true and correct as of the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;Effective Date.
(iv) in the reasonable judgment The bylaws of the Administrative AgentBorrower certified by a secretary, there has not been any change after assistant secretary or associate secretary of the date hereof in Applicable Law which adversely affects any Lender’s or Borrower to be true and correct as of the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Effective Date.
(v) any Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all information submitted documents evidencing other necessary corporate action, third party consents and governmental approvals, if any, with respect to this Agreement and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;Notes.
(vi) A certificate of the Administrative Agent shall have received all documentation secretary, assistant secretary or associate secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other information requested by documents to be delivered hereunder.
(vii) A certificate as of a recent date from the Administrative Agent Borrower’s state of incorporation evidencing that the Borrower is in its sole discretion or required by regulatory authorities with respect to good standing in such state.
(viii) A favorable opinion of counsel for the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory acceptable to the Administrative Lenders.
(ix) A written opinion of Sidley Austin LLP, special New York counsel for the Agent, addressed to the Agent and each Lender the Lenders, with respect to the enforceability of this Agreement and the Notes issued on the Effective Date, in form and substance reasonably acceptable to the Agent;.
(viix) no material adverse change on the businessEvidence that that certain Credit Agreement, assetsdated as of February 23, financial conditions or performance of the Servicer 2011, by and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, among the Borrower, the Servicerlenders from time to time parties thereto, and Union Bank, N.A., as agent (as the same shall have been amended or otherwise modified prior to the date hereof, the Eligible “Existing Term Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ixAgreement”) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to been terminated and cancelled and all indebtedness thereunder shall have been (or shall concurrently with the Commitment funding of the related Lender;
(xLoans hereunder be) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)fully repaid.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Second Amendment ---------------------------------------- shall not be effective upon, and no Lender shall be obligated until each of the following conditions precedent have been fulfilled to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:: 9
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Second Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and, shall be in full force and thereto effect and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each be in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals Agent and the making Lenders.
b. All action on the part of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the Borrowers necessary for the valid execution, delivery and performance by the Borrowers of this Agreement Second Amendment shall have been duly and all related Transaction effectively taken and evidence thereof satisfactory to the Agent shall have been provided to the Agent.
c. The Agent, on behalf of the Lenders, shall have received duly executed originals of each of the agreements, opinions, reports, approvals, consents, certificates and other documents set forth on Rider A hereto.
d. Except for (i) the filing of Uniform Commercial Code financing statements and recordation of amendments to the Mortgages, (ii) consents or authorizations which have been obtained or filings which have been made, and which in either case are in full force and effect or (iii) consents or authorizations the failure to obtain or filings the failure to make could not reasonably be expected to have a Material Adverse Effect, no consent or authorization of, permit from, filing with or other act by or in respect of, any Governmental Authority or any other Person shall be required in connection with the transactions contemplated hereunder, the grant of the Liens pursuant to the Credit Documents, or the continuing operations of the Borrower, the enforcement of the Agent's or the Lenders' rights under the Credit Documents, or with the execution, delivery, performance, validity or enforceability of the Credit Agreement, the other Credit Documents, the Indenture or any other documents executed in connection herewith or therewith.
e. The Collateral Documents and shall be effective to constitute create in favor of the same Agent for the benefit of the Lenders legal, valid and binding obligationsenforceable first (except for Liens permitted under Section 9.5 of the Credit Agreement which are entitled to priority under applicable law) security and mortgage interests in the Collateral. All filings, enforceable recordings, deliveries of instruments and other actions necessary or desirable in accordance with their respective terms, the opinion of the Agent to protect and preserve such security and mortgage interests shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative duly effected. The Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all evidence thereof in form and substance reasonably satisfactory to the Administrative Agent.
f. The Borrower shall have paid to the Agent and each Lender Agent;
(viii) no material adverse change on an amendment fee, for the business, assets, financial conditions or performance pro rata account of the Servicer and its subsidiaries, including the Borrower, Lenders based on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Notetheir respective Commitment Percentages, in a principal an amount equal to the Commitment 0.075% of the related Lender;
total Commitments, and (xii) Each Liquidity Bank whose commercial paper is being rated by one an execution fee, for the account of the Lenders executing this Second Amendment on or more Rating Agency shall have received, prior to the extent required under the terms of such CP Lender’s program documentseffective date hereof, the written confirmation in an amount equal to 0.125% of each such Rating Agency that the Lender's Commitment. The amendment fee and execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-fee shall be fully earned upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 Second Amendment and shall not be subject to refund or rebate under any circumstances. 10
g. The Borrower shall have been satisfiedprovided such additional instruments and documents to the Agent as the Agent and Agent's counsel may have reasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Wickes Inc)
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent have been fulfilled to the sole discretion of, or waived in writing by, satisfaction of the Administrative Agent:
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof This Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and thereto and the hereto. The Administrative Agent shall have received a fully executed copy hereof.
(b) All necessary consents and approvals to this Amendment shall have been obtained by the Loan Parties.
(c) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(d) After giving effect to this Amendment, the representations and warranties herein and in the Credit Agreement and the other Loan Documents shall be (i) to the extent qualified by materiality, true and correct in all respects, and (ii) to the extent not qualified by materiality, true and correct in all material respects, in each case on and as of the date hereof, as though made on such other documentsdate (except to the extent that such representations and warranties relate solely to an earlier date, instruments, agreements in which case such representations and legal opinions warranties shall have been true and correct in all material respects as any Lender of such earlier date).
(e) The Administrative Agent shall reasonably request have received, for the pro rata account of each Lender party to the Credit Agreement on the date hereof, a non-refundable amendment fee in an amount equal to $115,000 payable in immediately available funds, which amendment fee shall be fully earned when paid. The foregoing amendment fee shall be credited against the amendment fee payable to such Lenders in connection with the transactions contemplated by this Agreement, on or prior execution and delivery of the proposed amendment to the Closing DateCredit Agreement to, each in form and substance satisfactory to among other things, increase the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) Commitments; provided that are invoiced at or prior to the Closing Date nothing contained herein shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining be deemed a commitment of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability Lender to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;such amendment.
(vf) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the The Administrative Agent shall have received all documentation the fees costs and other information requested by the Administrative Agent in its sole discretion or expenses required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory be paid pursuant to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery Section 10 of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account Amendment (including the Principal Collection Account reasonable and Interest Collection Account sub-accounts documented fees and disbursements of legal counsel required to be paid thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s 's or the Administrative Agent’s 's ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all written information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete true and correct in all material respects and not misleading in no such document or certificate contains any material respectmisstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not misleading; provided that, solely with respect to written or electronic information furnished by the Borrower or the Servicer which was provided to the Borrower or the Servicer from an Obligor with respect to a Loan Asset (or is derived therefrom), such information need only be accurate, true and correct to the knowledge of the Borrower or the Servicer;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent such Lender in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “"know your customer” " and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) at least five (5) days prior to the Closing Date, the Borrower shall deliver a Beneficial Ownership Certification;
(vi) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vii) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including in the Borrower's (or the Servicer's) underwriting, on a consolidated basisservicing, or any material portion collection, operating and reporting procedures and systems since the completion of due diligence by the initial proposed Eligible Loan Assets has occurredAdministrative Agent and each Lender;
(viii) the results of the Administrative Agent’s legal 's financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;; and
(ix) each the Borrower shall have paid in full all invoiced fees then required to be paid thereby, including all fees required hereunder and under the applicable Lender Fee Letters and the Collateral Agent and Collateral Custodian Fee Letter and shall have received a duly executed copy reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all reasonable and documented fees, costs and expenses of its Revolving Note, in a principal amount equal to closing the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required transactions contemplated hereunder and under the terms of such CP Lender’s program documentsother Transaction Documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account attorney fees and Interest Collection Account sub-accounts thereunder) has been established pursuant to any other legal and document preparation costs incurred by the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to Lenders and the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Administrative Agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund)
Conditions Precedent to Effectiveness. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date (the "Effective Date") on which the following conditions precedent have been satisfied:
(a) This There shall have occurred no Material Adverse Change since December 31, 2006.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that (i) the Information Memorandum (other than the financial projections included therein) contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances in which such statements were made or (ii) the financial projections included in the Information Memorandum were not prepared in good faith based upon reasonable assumptions at the time prepared (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Company's control, and that no assurance can be given that the projections will be realized); and without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Company and its Subsidiaries as they shall have requested.
(d) The Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued fees (including the fees described in the Information Memorandum) and expenses of the Agent and the Lenders (including the invoiced accrued fees and expenses of counsel to the Agent).
(f) On the Effective Date, the following statements shall be effective upontrue and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, and no Lender shall be obligated to make any Advance hereunder from and after dated the Closing Effective Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentstating that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment The representations and warranties contained in Section 4.01 are correct on and as of the Contribution AgreementEffective Date, and
(ii) No event has occurred and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative is continuing that constitutes a Default.
(g) The Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to before the Closing Effective Date the following, each dated the Effective Date, each in form and substance satisfactory to the Administrative Agent;:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving each Loan Document to which it is a party, and of all reasonable up-front expenses documents evidencing other necessary corporate action and fees (including legal feesgovernmental approvals, any fees required under the Fee Letters) that are invoiced at or prior if any, with respect to the Closing Date shall have been paid in full;each Loan Document to which it is a party.
(iii) all other acts A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and conditions (including, without limitation, true signatures of the obtaining officers of any necessary consents and regulatory approvals the Company authorized to sign each Loan Document to which it is a party and the making of any required filings, recordings or registrations) required other documents to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;delivered hereunder.
(iv) A favorable opinion of Roy Smith, General Xxxxxxx xor the Company, substantially in the reasonable judgment form of Exhibit D hereto and as to such other matters as any Lender through the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance may reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Five Year Credit Agreement (Cytec Industries Inc/De/)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement;
(xiii) The YRA Account has been established pursuant to the YRA Account Agreement; and
(xiiixiv) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, fees and any fees required under the Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lenderthe Note Purchaser’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption after May 7, 2009 in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to the Administrative Agent Note Purchaser by the Borrower, the Transferor, the Servicer, Solar Management Equityholder or the Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent Note Purchaser shall have received received, all documentation and other information requested by the Administrative Agent Note Purchaser in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Note Purchaser;
(v) the Agent shall have received on or before the date of such Advance the items listed in Schedule I hereto, each in form and substance satisfactory to the Agent and each Lender the Note Purchaser;
(vi) the Agent and Note Purchaser have received approval from their internal credit committee and all other necessary approvals, as required by the Agent;, in its sole discretion; and
(vii) no material adverse change effect on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that that, and the Agent hereby acknowledges that, each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedentprecedent have been fulfilled to the satisfaction of (and in form and substance satisfactory to, as determined in applicable) the sole discretion of, or waived in writing byAdministrative Agent (such date, the Administrative Agent:“Fifth Amendment Effective Date”):
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof 3.1 This Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and thereto and the hereto. The Administrative Agent shall have received a fully executed copy hereof.
3.2 All necessary consents and approvals to this Amendment shall have been obtained by the Loan Parties.
3.3 After giving effect to this Amendment, each of the representations and warranties herein and in the Credit Agreement and the other Loan Documents (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of the Fifth Amendment Effective Date as if made on and as of such date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date. For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has executed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other documentsmatter either sent (or made available) by the Administrative Agent to such Lender for consent, instrumentsapproval, agreements and legal opinions as any Lender acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender, unless an officer of the Administrative Agent shall reasonably request in connection with responsible for the transactions contemplated by this Agreement, the Loan Documents shall have received notice from such Lender prior to the Fifth Amendment Effective Date specifying such Lender’s objection thereto and such objection shall not have been withdrawn by notice to the Administrative Agent to that effect on or prior to the Closing Fifth Amendment Effective Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be become ------------------------------------- effective upon, and no Lender shall be obligated to make any Advance hereunder from and after on the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction Business Day on which each of the following conditions precedent, as determined in the sole discretion of, or waived in writing byprecedent has been satisfied (such date, the Administrative Agent:"Effective Date"):
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent Lender shall have received such other documentsevidence, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Administrative AgentCollateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(iib) all reasonable up-front expenses requisite corporate action and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid proceedings in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of connection with this Agreement and all related Transaction Documents the other Financing Agreements shall be satisfactory in form and substance to constitute the same legalLender, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent Lender shall have received all documentation information and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulationscopies of all documents, including, without limitation, the USA PATRIOT Actrecords of requisite corporate action and proceedings which Lender may have requested in connection therewith, all in form and substance reasonably satisfactory such documents where requested by Lender or its counsel to the Administrative Agent and each Lender Agentbe certified by appropriate corporate officers or governmental authorities;
(viic) no material adverse change on shall have occurred in the business, assets, financial conditions business or performance prospects of Borrower since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the Servicer and its subsidiaries, including other Financing Agreements to which it is a party or of Lender to enforce the Borrower, on a consolidated basis, Obligations or any material portion of realize upon the initial proposed Eligible Loan Assets has occurredCollateral;
(viiid) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the extent required under Collateral or to effectuate the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery provisions or purposes of this Agreement will not result and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in a withdrawal or downgrading of the then-current rating of such commercial paper Collateral, waivers by such Rating Agencypersons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(xie) The Collection Account (including Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the Principal Collection Account other Financing Agreements, in form and Interest Collection Account sub-accounts thereundersubstance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
f) has been established pursuant Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account AgreementFinancing Agreements and such other matters as Lender may request; and
(xiiig) the Borrower has a valid ownership interest other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
h) Lender shall have received, in form and substance satisfactory to Lender, confirmation from the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as Pension Trustee that all of the Closing Date)Obligations constitute "Senior Debt" under and as defined in that certain Amendment and Restatement of Subordination Agreement dated June 30, 1987 among the Pension Trustee, ITT Commercial Finance Corp. and Lender.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Keystone Consolidated Industries Inc)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any LenderLende’s or the Administrative Agent’s 's ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrowerany Loan Party, the Transferor, Originator or the Servicer, Solar Management Servicer or any of their Affiliates is true, true and accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or such Lender and/or required by regulatory authorities with respect to the Borrowerany Loan Party, the Transferor Originator and the Servicer under applicable “"know your customer” " and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vi) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change in any Loan Party's (or the Service’s) underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence by the Administrative Agent and each Lender;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of the Administrative Agent’s legal 's financial, legal, tax and accounting due diligence relating to the TransferorOriginator, the Borrowereach Loan Party, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiiviii) the Borrower has a valid ownership interest shall have paid in full all fees then required to be paid, including all fees required hereunder and under the agreed-upon initial pool applicable Lender Fee Letters and the Xxxxx Fargo Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of Eligible Loan Assets (as set forth in Schedule IV as of closing the Closing Date)transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment, consent or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement Third Amendment shall -------------------------------------- not be effective upon, and no Lender shall be obligated until each of the following conditions precedent have been fulfilled to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Third Amendment shall have been duly executed by, and delivered to, by the Majority Lenders and the other parties hereto and, shall be in full force and thereto effect and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each be in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals Agent and the making Majority Lenders.
b. All action on the part of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the Borrowers necessary for the valid execution, delivery and performance by the Borrowers of this Agreement Third Amendment shall have been duly and all related Transaction effectively taken and evidence thereof satisfactory to the Agent shall have been provided to the Agent.
c. Except for (i) the filing of Uniform Commercial Code financing statements and recordation of amendments to the Mortgages, (ii) consents or authorizations which have been obtained or filings which have been made, and which in either case are in full force and effect or (iii) consents or authorizations the failure to obtain or filings the failure to make could not reasonably be expected to have a Material Adverse Effect, no consent or authorization of, permit from, filing with or other act by or in respect of, any Governmental Authority or any other Person shall be required in connection with the transactions contemplated hereunder, the grant of the Liens pursuant to the Credit Documents, or the continuing operations of the Borrower, the enforcement of the Agent's or the Lenders' rights under the Credit Documents, or with the execution, delivery, performance, validity or enforceability of the Credit Agreement, the other Credit Documents, the Indenture or any other documents executed in connection herewith or therewith.
d. The Collateral Documents and shall be effective to constitute create in favor of the same Agent for the benefit of the Lenders legal, valid and binding obligationsenforceable first (except for Liens permitted under Section 9.5 of the Credit Agreement which are entitled to priority under applicable law) security and mortgage interests in the Collateral. All filings, enforceable recordings, deliveries of instruments and other actions necessary or desirable in accordance with their respective terms, the opinion of the Agent to protect and preserve such security and mortgage interests shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative duly effected. The Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all evidence thereof in form and substance reasonably satisfactory to the Administrative Agent.
e. The Borrower shall have paid to the Agent and each Lender Agent;
(viii) no material adverse change on an amendment fee, for the business, assets, financial conditions or performance pro rata account of the Servicer and its subsidiaries, including the Borrower, Lenders based on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Notetheir respective Commitment Percentages, in a principal an amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency $100,000. The amendment fee shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-be fully earned upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 Third Amendment and shall not be subject to refund or rebate under any circumstances.
f. The Borrower shall have been satisfiedprovided such additional instruments and documents to the Agent as the Agent and Agent's counsel may have reasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Wickes Inc)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Document shall have been duly executed by, and delivered to, the parties hereto and thereto thereto, and the Administrative Agent shall have received copies of the Advisory Agreements and such other documents, instruments, agreements agreements, certificates and legal opinions as any Lender the Administrative Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management any Borrower Party or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiii) the Administrative Agent shall have received all documentation each Borrower Party’s underwriting, servicing, collection, operating, and other information requested by reporting procedures and systems are satisfactory to the Administrative Agent in its sole discretion discretion;
(iv) a satisfactory review by the Administrative Agent of all organizational documents and material contracts of each Borrower Party (including, without limitation, the Advisory Agreements);
(v) a satisfactory review by the Administrative Agent of business, financial, legal, tax and accounting due diligence relating to transactions contemplated hereby, each Borrower Party and the transactions contemplated hereunder are satisfactory to the Administrative Agent in its sole discretion;
(vi) in the reasonable judgment of the Administrative Agent and each Lender Agent, there not having been any change in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s entering into the transactions contemplated by the Transaction Documents or material disruption after December 31, 2013 in the financial, banking or commercial loan or capital markets generally;
(vii) the Administrative Agent and the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information required by bank regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56;
(viii) a satisfactory due diligence review by the Administrative Agent of each Loan submitted for consideration in the initial Collateral Portfolio;
(ix) the Administrative Agent and each Institutional Lender shall have received each required approval (including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to from its internal credit committee);
(x) the Administrative Agent and each Lender the Lenders shall have received the fees (including fees, disbursements and other charges of counsel to the Administrative Agent) to be received on the Closing Date referred to herein or in any other Transaction Document;
(viixi) since December 31, 2013, no material adverse change on has occurred in the business, assets, financial conditions or performance condition of the Servicer and its subsidiariesEquityholder, including the BorrowerSeller, on a consolidated basis, any Borrower Advisor or the Borrower or in any material portion of the assets in the initial proposed Eligible Loan Assets has occurredCollateral Portfolio;
(viiixii) the results Administrative Agent shall have received satisfactory evidence that the Seller, the Borrower and the Collateral Manager have obtained all required consents and approvals of Administrative Agent’s legal due diligence relating all Persons to the Transferorexecution, delivery and performance of this Agreement and the Borrower, other Transaction Documents to which it is a party and the Servicer, the Eligible Loan Assets and consummation of the transactions contemplated hereunder are hereby or thereby;
(xiii) the Collateral Manager and the Borrower shall each have delivered to the Administrative Agent a certificate as to whether such Person is Solvent in the form of Exhibit P;
(xiv) the Borrower and the Collateral Manager shall have delivered to the Administrative Agent a certification that no Unmatured Event of Default, Event of Default or Collateral Manager Event of Default has occurred and is continuing;
(xv) the Administrative Agent shall have received (i) the customary executed legal opinion or opinions of Dechert LLP, counsel to the Borrower and the Collateral Manager, covering enforceability, grant and perfection of the security interests on the Collateral Portfolio and non-consolidation of the Borrower and (ii) bring-down legal opinions of Dechert LLP covering the enforceability of the Advisory Agreements as of the Closing Date, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion;
(xvi) all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be reasonably satisfactory in form and substance to the Administrative Agent;
(ixxvii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related such Lender;
(xxviii) Each Liquidity Bank whose commercial paper the UCC-1 financing statement is being rated by one or more Rating Agency in proper form for filing in the filing office of the appropriate jurisdiction;
(xix) the Administrative Agent shall have receivedreceived a secretary’s certificate of each of the Collateral Manager and the Borrower that includes a copy of the resolutions (or other authorizing instruments, if applicable), in form and substance satisfactory to the extent required under Administrative Agent, of the terms Board of Directors (or similar governing or managing body) of such CP Lender’s program documentsPerson authorizing (i) the execution, the written confirmation of each such Rating Agency that the execution delivery and delivery performance of this Agreement will not result and the other Transaction Documents to which it is a party, (ii) in a withdrawal or downgrading the case of the then-current rating Borrower, the borrowings contemplated hereunder, and (iii) in the case of such commercial paper the Borrower, the granting by such Rating Agency;
(xi) The Collection Account (including it of the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established Liens created pursuant to the Collection Account Agreement;
Transaction Documents, certified by the Secretary or an Assistant Secretary (xiior other authorized Person) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV such Person as of the Closing Date, which certification shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions, or other authorizing instruments, if applicable, thereby certified have not been amended, modified, revoked or rescinded;
(xx) the Administrative Agent shall have received a certification of each of the Collateral Manager and the Borrower, dated the Closing Date, as to the incumbency and signature of the officers of such Person executing any Transaction Document, which certification may be included in the certificate delivered in respect of such Person pursuant to Section 3.01(a)(xix) and satisfactory in form and substance to the Administrative Agent and shall be executed by an Authorized Person of such Person;
(xxi) the Administrative Agent shall have received true and complete copies of the organizational documents of each of the Collateral Manager and the Borrower, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary (or other authorized Person) of such Person, which certification shall be included in the certificate delivered in respect of such Person pursuant to Section 3.1(a)(xix) and shall be in form and substance satisfactory to the Administrative Agent;
(xxii) the Administrative Agent shall have received certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Collateral Manager and the Borrower (i) in the jurisdiction of its organization and (ii) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (ii), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect;
(xxiii) the Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1 necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created, or purported to be created, by the Transaction Documents shall have been completed;
(xxiv) the Administrative Agent shall have received the results of a recent search by a Person satisfactory to the Administrative Agent, of the UCC, judgment and tax lien filings which may have been filed with respect to personal property of the Borrower, and bankruptcy and pending lawsuits with respect to the Borrower and the results of such search shall be satisfactory to the Administrative Agent;
(xxv) the Borrower shall have received the executed legal opinion or opinions of Lxxxx Lord LLP, counsel to the Collateral Agent, the Collateral Custodian and the Account Bank, covering enforceability of the Transaction Documents to which the each such Person is a party; and
(xxvi) the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) shall have received the Initial Notice of Borrowing.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (FS Investment Corp II)
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent has been satisfied to the sole discretion satisfaction of, or waived in writing byaccordance with Section 12.01 of the Credit Agreement, the by Administrative AgentAgent and Lenders;
(a) Administrative Agent shall have received:
(i) a fully executed copy of this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been Amendment duly executed byand delivered by Borrower, Administrative Agent, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative AgentIncreasing Lender;
(ii) all reasonable up-front expenses an amended and fees (including legal feesrestated Note, any fees required under the Fee Letters) that are invoiced at or prior drawn to the Closing Date shall have been paid order of the Increasing Lender in fullthe amount of its Commitment as increased hereby, duly executed and delivered by Borrower;
(iii) all other acts a fully executed fee letter (the “First Amendment Fee Letter”) dated as of the date hereof, duly executed and conditions (including, without limitation, delivered by the obtaining of any necessary consents Borrower and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;Administrative Agent; and
(iv) in the reasonable judgment a certificate of the Administrative Agent, there has not been any change after Borrower dated as of the date hereof in Applicable Law which adversely affects any Lender’s or signed by a Responsible Officer of the Administrative Agent’s ability to enter into Borrower certifying and attaching the transactions contemplated resolutions adopted by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generallyBorrower approving and consenting to this Amendment;
(vb) any and all information submitted to the Administrative Agent by the BorrowerIn connection with this Amendment, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation fees and other information requested by the Administrative Agent in its sole discretion amounts due and payable hereunder on or required by regulatory authorities with respect prior to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance date of the Servicer and its subsidiariesthis Amendment, including the Borrower, on a consolidated basis, or any material portion of fees set forth in the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have receivedFirst Amendment Fee Letter and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal to be reimbursed or downgrading of the then-current rating of such commercial paper paid by such Rating Agency;Borrower hereunder.
(xic) The Collection Account (including the Principal Collection Account No Potential Default or Event of Default shall have occurred and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV be continuing as of the Closing Date).
(b) By its execution and delivery date of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedAmendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Crescent Capital BDC, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement shall be become effective upon, and no Lender shall be obligated to make any Advance hereunder from and after on the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction Effective Date so long as each of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent has been satisfied:
(i) no material adverse change shall have occurred in the assets, business or prospects of Loan Parties and their Subsidiaries determined on a consolidated basis since the date of Agent’s latest field examination (not including for this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement purpose the field review referred to in clause (including, without limitation, b) below) and (ii) no change or event shall have occurred which would impair the assignment ability of Loan Parties and their Subsidiaries to perform their obligations hereunder or under any of the Contribution Agreementother Financing Agreements to which they are parties or of any Agent Party to enforce the Obligations or realize upon the Collateral, taken as a whole;
(b) the Excess Availability as determined by Agent (based on the Borrowing Base reflected in the most recent Borrowing Base Certificate delivered in accordance with Section 7.1(a)(i) herein), as of the Effective Date, shall be not less than $40,000,000 after giving effect to (i) all Loans made or to be made and all other Transaction Documents and all other agreements and opinions the Letter of counsel listed on Schedule I hereto Credit Accommodations issued or counterparts hereof to be issued prior to or thereof shall have been duly executed byin connection with the closing of the transactions hereunder, and delivered to, the parties hereto (ii) payment of all fees and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request expenses in connection with the transactions contemplated by under this Agreement;
(c) Agent shall have received evidence, on or prior to the Closing Date, each in form and substance satisfactory to Agent, that the Administrative Agent has a valid perfected first priority security interest in all of the Collateral subject to the senior liens and other encumbrances permitted hereunder;
(d) Agent shall be satisfied that no investigation, litigation or other proceedings shall be pending or threatened against any Loan Party or any Subsidiary of any Loan Party which could have a Material Adverse Effect in the reasonable determination of Agent;
(iie) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received executed copies (certified as being complete and final by a financial officer of Parent) of the 2004 Second Priority Senior Secured Notes Indenture, the 2004 Senior Subordinated Notes Indenture and all documentation documents, agreements and other information requested instruments executed in connection therewith;
(f) Agent shall have received proceeds from all notes issued under the 2004 Second Priority Senior Secured Notes Indenture, which shall be accompanied by a letter of direction which directs Agent to apply such proceeds on the Administrative Agent Effective Date to (i) prepay in its sole discretion or required by regulatory authorities with respect full all obligations owing to the Borrower“Term Lenders” under (and as defined in) the Prior Agreement and (ii) prepay Loans outstanding under this Agreement with the remaining balance of such proceeds; and
(g) the Financing Agreements and all other instruments, the Transferor documents, certificates, opinions, agreements, information and the Servicer under applicable “know your customer” and anti-money laundering rules and regulationsrecords listed on Schedule 4.1 shall have been duly executed and/or delivered to Agent, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Delco Remy International Inc)
Conditions Precedent to Effectiveness. (a) This Agreement Joinder shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent have been fulfilled to the sole discretion of, or waived in writing by, reasonable satisfaction of the Administrative Agent:
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof This Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered toshall be in full force and effect.
(b) All action on the part of the New [Borrower/Guarantor] and the other Loan Parties necessary for the valid execution, delivery and performance by the parties hereto New [Borrower/Guarantor] and thereto the other Loan Parties of this Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory been provided to the Administrative Agent;.
(iic) all reasonable up-front expenses The New [Borrower/Guarantor] (and fees (including legal feeseach other Loan Party, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date extent requested by the Administrative Agent) shall each have been paid in full;
(iii) all other acts and conditions (including, without limitation, delivered the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required following to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent Agent:
(i) Certificate of Legal Existence and Good Standing, if applicable, issued by the Secretary of the State of its incorporation or organization.
(ii) A certificate of an authorized officer of the due adoption, continued effectiveness, and setting forth the text, of each Lender Agentcorporate resolution adopted in connection with the assumption of obligations under the Credit Agreement and the other Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Organization Documents.
(iii) Execution and delivery by the New [Borrower/Guarantor] of the following Loan Documents:
a) [Joinders to the Notes, as applicable];
b) [Joinder to the Security Documents, as applicable];
c) [Joinder to the Facility Guaranty, as applicable];
d) [Blocked Account Agreement with ]; and
e) Such other documents and agreements as the Administrative Agent or the Collateral Agent may reasonably require.
(viid) no material adverse change on Upon the business, assets, financial conditions or performance request of the Servicer and Administrative Agent in its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferorsole discretion, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy written legal opinion of its Revolving Notethe New [Borrower’s/Guarantor’s] counsel, in a principal amount equal addressed to the Commitment of Administrative Agent, the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have receivedCollateral Agent and the other Credit Parties, covering such matters relating to the extent required under the terms of such CP Lender’s program documentsNew [Borrower/Guarantor], the written confirmation of each such Rating Agency that Loan Documents and/or the execution and delivery of this Agreement will not result in a withdrawal or downgrading of transactions contemplated thereby as the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Administrative Agent may reasonably request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Joinder shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of until the following conditions precedent, as determined in precedent have each been fulfilled to the sole discretion of, or waived in writing by, reasonable satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed effect and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all be in form and substance reasonably satisfactory to the Administrative Agent.
b. All action on the part of the New Borrowers and the other Loan Parties necessary for the valid execution, delivery and performance by the New Borrowers of this Joinder and all other documentation, instruments, and agreements required to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have been provided to the Administrative Agent.
c. Each New Borrower (and each other Loan Party, to the extent requested by the Administrative Agent) shall each have delivered the following to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:
i. Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization.
ii. A certificate of an authorized officer of the due adoption, continued effectiveness, and setting forth the text, of each corporate resolution adopted in connection with the assumption of obligations under the Credit Agreement and the other Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents.
iii. Execution and delivery by each New Borrower of such other documents, agreements and certificates as the Administrative Agent and each Lender Agent;the Collateral Agent may reasonably require.
(vii) no material adverse change on the business, assets, financial conditions or performance d. The Agents shall have received a favorable written legal opinion of the Servicer Loan Parties’ counsel addressed to the Agents and its subsidiariesthe other Lenders, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence covering such matters relating to the TransferorNew Borrowers, the Borrower, the Servicer, the Eligible Loan Assets and Documents and/or the transactions contemplated hereunder are satisfactory to thereby as the Agents shall reasonably request.
e. The Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy all documents and instruments, (including an authenticated record authorizing the Agents and their representatives to file such UCC financing statements as the Agents may determine to be appropriate), required by law or requested by the Administrative Agent or the Collateral Agent to create or perfect the first priority Lien (subject only to Permitted Encumbrances having priority by operation of its Revolving NoteApplicable Law) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, in a principal amount equal registered or recorded or other arrangements reasonably satisfactory to the Commitment of the related Lender;Agents.
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency f. The Loan Parties shall have received, executed and delivered to the extent required under the terms of Agents such CP Lender’s program additional documents, instruments, and agreements as the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Agents may reasonably request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Joinder to Loan Documents (Burlington Coat Factory Investments Holdings, Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement The effectiveness of this Amendment shall be effective upon, and no Lender shall be obligated subject to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documentsthis Amendment, instrumentsduly executed by Borrower, agreements the Parent and legal opinions as the Lenders;
(b) All written certificates and written statements heretofore furnished to Agent or any Lender by or on behalf of any Loan Party for purposes of or in connection with this Amendment or any transaction contemplated hereby do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being recognized that the projections and forecasts provided by the Loan Parties in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results);
(c) Each of the representations and warranties in Section 4 of this Amendment shall be true, accurate and complete;
(d) The Loan Parties shall have paid to Agent shall reasonably request and the Lenders all fees, charges, and other expenses which are then due and payable pursuant to the Credit Agreement, including without limitation the reasonable and invoiced out-of-pocket costs and expenses of Agent and the Lenders party hereto, and the reasonable fees and disbursements of counsel to Agent and the Lenders party hereto , in connection with the transactions contemplated by this Agreementnegotiation, on or prior to the Closing Datepreparation, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result Amendment and any other documents to be delivered in a withdrawal connection herewith on the Fifth Amendment Effective Date or downgrading of the then-current rating of after such commercial paper by date, provided however, that all such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account fees, charges and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreementexpenses shall be capped at $15,000.00; and
(xiiie) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible The Loan Assets (Parties shall have delivered such other documents, information, certificates, records, permits, and filings as set forth in Schedule IV as of the Closing Date)Agent may reasonably request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) all fees and all other Transaction Documents reasonable and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable updocumented out-front of-pocket expenses and fees (including reasonable legal fees, the Structuring Fee and any fees required under any Lender Fee Letter and the WFBNA Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents consents, all required legal opinions and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent and each Lender Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect material adverse change or material disruption after the date hereof in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information in writing submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative each Lender Agent shall have received received, all documentation and other information requested by the Administrative such Lender Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer (and each Affiliate and any key personnel of the foregoing) under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to each Lender Agent;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(viivi) in the judgment of the Administrative Agent, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including changes in the Borrower’s (and the Servicer’s, on a consolidated basisas applicable) underwriting, or any material portion servicing, collection, operating, and reporting procedures and systems since the completion of the initial proposed Eligible Loan Assets has occurred;due diligence; and
(viiivii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix; and(viii) each applicable Lender the Administrative; Agent shall have has received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV Committed Equity Capital is at least $200,000,000 as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) all fees and all other Transaction Documents reasonable and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable updocumented out-front of-pocket expenses and fees (including reasonable legal fees, the Structuring Fee and any fees required under any Lender Fee Letter and the WFBNA Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents consents, all required legal opinions and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent and each Lender Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect material adverse change or material disruption after the date hereof in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information in writing submitted to each Lender, Lender Agent and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative each Lender Agent shall have received received, all documentation and other information requested by the Administrative such Lender Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer (and each Affiliate and any key personnel of the foregoing) under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to each Lender Agent;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(viivi) in the judgment of the Administrative Agent, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including changes in the Borrower’s (and the Servicer’s, on a consolidated basisas applicable) underwriting, or any material portion servicing, collection, operating, and reporting procedures and systems since the completion of the initial proposed Eligible Loan Assets has occurred;due diligence; and
(viiivii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, fees and any fees required under any Lender Fee Letter and the Wxxxx Fargo Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent and each Lender Agent, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender, each Lender Agent and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative each Lender Agent shall have received all documentation and other information requested by the Administrative such Lender Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to each Lender Agent;
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender Agent;
(vi) in the judgment of the Administrative Agent and each Lender Agent, there shall have been no material adverse change in the Borrower’s (or the Servicer’s) underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence by the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ixviii) each applicable Lender Agent shall have received a duly executed copy of its Revolving Variable Funding Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiiiix) the Borrower Administrative Agent shall have received evidence that SenorSenior Loan Fund LLC has a valid ownership interest in the agreed-upon initial pool at least $100,000,000 of Eligible Loan Assets (as set forth in Schedule IV equity and subordinated notes circled as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided, that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 1 contract
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) This Agreement Except as disclosed in filings with the Securities and Exchange Commission prior to the date hereof, there shall be effective uponhave occurred no Material Adverse Change since December 31, 2017.
(b) Except as disclosed in filings with the Securities and Exchange Commission prior to the date hereof, there shall exist no Lender shall be obligated action, suit, investigation, litigation or proceeding affecting the Company or any of its Subsidiaries pending or, to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction knowledge of the following conditions precedentCompany, as determined in the sole discretion ofthreatened before any court, governmental agency or waived in writing by, the Administrative Agent:
arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement Agreement or any Note or the borrowing contemplated hereunder.
(including, without limitation, the assignment of the Contribution Agreementc) All governmental and all other Transaction Documents third party consents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request approvals necessary in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date hereby shall have been paid in full;
obtained (iii) all other acts and conditions (including, without limitation, the obtaining imposition of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior conditions that are not acceptable to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed Lenders) and shall have occurred remain in due effect, and strict compliance with all Applicable Law;
(iv) no law or regulation shall be applicable in the reasonable judgment of the Administrative AgentLenders that restrains, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s prevents or the Administrative Agent’s ability to enter into imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Company shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent) to the extent invoiced at least three Business Days prior to the Effective Date and required to be paid on or prior to the Effective Date.
(f) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Transaction Documents Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except such representations that are qualified by materiality, which shall be correct in all respects) on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance reasonably satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes of the Company to the order of the Lenders to the extent requested by any Material Adverse Effect Lender pursuant to Section 2.15.
(ii) Certified copies of the resolutions or material disruption other evidence of authority of the Board of Directors of the Company approving this Agreement and the Notes to be delivered by it, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes to be delivered by it and the other documents to be delivered by it hereunder.
(iv) A customary opinion of the associate general counsel of the Company, substantially in the financial, banking or commercial loan or capital markets generally;form of Exhibit D hereto.
(v) any A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and all information submitted substance reasonably satisfactory to the Administrative Agent Agent.
(h) All amounts owing by the BorrowerBorrowers under the Existing Credit Agreement shall have been, or concurrently with the Effective Date hereunder shall be, paid in full.
(i) To the extent reasonably requested reasonably in advance of the Effective Date by any of the Agent, any Arranger or the Lenders, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received received, prior to the Effective Date, all documentation and other information requested by the Administrative Agent in its sole discretion or required by bank regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Patriot Act.
(bii) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent At least five (5) days prior to the effectiveness of this Agreement set forth Effective Date, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in this Section 3.01 have been satisfiedrelation to the Company.
Appears in 1 contract
Samples: Credit Agreement (At&t Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on the date that all of the following conditions shall have been satisfied:
(a) This Agreement shall be effective upon, have been properly executed and no delivered to the Lender.
(b) The Notes shall have been properly executed and delivered to the Lender.
(c) The Lender shall be obligated to make any Advance hereunder have received from and after Donovan Leisure Newton & Ixxxxx, 30 Rockefxxxxx Plaza, 40th Xxxxx Xxx Xxxx, Xxx Xxxx 00000, xxxxxxx xx xxx Xxxxxxxx ("DL"), its legal opinion in substantially the Closing Date, nor form attached hereto as Exhibit C.
(d) The Lender shall any Lender, have received a certificate by the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction managing member of the following conditions precedentBorrower, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
certifying (i) the names and true signatures of its incumbent officers authorized to sign the Loan Documents to which it is a party, (ii) a copy of the operating agreement of the Borrower; (iii) that there have been no changes in such operating agreement.
(e) The Lender shall have received such other certificates, opinions, documents and instruments relating to this AgreementAgreement as may have been reasonably requested by the Lender, each Liquidity Agreementand all company and corporate and other proceedings, each Hedging Agreement, each collateral assignment agreement all other documents (including, without limitation, the assignment of the Contribution Agreementall documents referred to herein and not appearing as exhibits hereto) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request matters in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each Loans shall be satisfactory in form and substance satisfactory to the Administrative Agent;Lender.
(iif) all reasonable up-front expenses The representations and fees (including legal fees, any fees required under warranties herein shall be true and correct as of the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;date hereof.
(iiig) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities No Default with respect to the Borrower, the Transferor payment of money or Event of Default shall have occurred and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change be continuing on the business, assets, financial conditions date hereof either before or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that after the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(bh) By its execution No law or regulation shall have been adopted, no order, judgment or decree of any Governmental Authority shall have been issued, and delivery no litigation shall be pending or threatened, which in the good faith judgment of the Lender would enjoin, prohibit or restrain, or impose or result in the imposition of any material adverse condition upon, the making or repayment of the Loans.
(i) The Borrower shall have paid all costs incurred by the Lender in connection with this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective uponwith respect to the items addressed in the preliminary statements upon the Effective Date, and shall be effective with respect to all other matters on the Closing Date or the date of the applicable Amendment and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer Servicer, the Account Bank or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agentthereto;
(ii) all reasonable up-front expenses and fees (including reasonable legal fees, fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at or least three Business Days prior to the Closing Date shall have been paid in full;
(iii) all other acts the representations and conditions warranties contained in Sections 4.01, 4.02 and 4.06 are true and correct (including, without limitation, as certified by the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable LawBorrower);
(iv) As of the Closing Date, the Borrower had received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods shall have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability Lenders could reasonably be expected to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generallyhave such effect;
(v) no action, proceeding or investigation shall have been instituted, threatened or proposed before any and all information submitted Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the Administrative Agent other Transaction or the consummation of the transactions contemplated hereby or thereby, or which, in the Lenders' sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the Borrower, other Transaction Documents or the Transferor, consummation of the Servicer, Solar Management transactions contemplated hereby or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;thereby; and
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower, the Transferor Borrower and the Servicer under applicable “"know your customer” " and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Conditions Precedent to Effectiveness. (a) This Notwithstanding anything in this Agreement to the contrary, this Agreement shall be not become effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in the sole discretion of, precedent shall have been satisfied or waived in writing by, by the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof TIFIA Lender: The Borrower shall have been duly executed by, and delivered to, to the parties hereto and thereto TIFIA Lender this Agreement and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing DateTIFIA Bond, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses TIFIA Lender. The Borrower shall have delivered to the TIFIA Lender certified, complete, and fees (including legal feesfully executed copies of each Indenture Document[, together with any fees required under the Fee Letters) amendments, waivers or modifications thereto, in each case that are invoiced at has been entered into on or prior to the Closing Date Effective Date,] 87 and each such agreement shall be in full force and effect and in form and substance satisfactory to the TIFIA Lender, and all conditions contained in such documents to the closing of the transactions contemplated thereby shall have been paid in full;
fulfilled or effectively waived (iiiprovided that for purposes of this Section 13(a)(ii) all other acts and conditions (includingConditions Precedent to Effectiveness), without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to such waiver shall be done and performed and to have happened prior subject to the execution, delivery TIFIA Lender’s consent in its sole discretion). Counsel to the Borrower [and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, each other Borrower Related Party] shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted rendered to the Administrative Agent by TIFIA Lender legal opinions satisfactory to the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent TIFIA Lender in its sole discretion (including those opinions set forth on Exhibit H-1) and bond counsel to the Borrower [and the other Borrower Related Parties] shall have rendered to the TIFIA Lender legal opinions satisfactory to the TIFIA Lender in its sole discretion (including those opinions set forth on Exhibit H-2). The Borrower shall have provided a certificate from the Borrower’s Authorized Representative as to the absence of debarment, suspension or required by regulatory authorities voluntary exclusion from participation in Government contracts, procurement and non-procurement matters substantially in the form attached hereto as Exhibit C with respect to the Borrower, the Transferor Borrower and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all its principals (as defined in form and substance reasonably satisfactory 2 C.F.R. § 180.995).88 The Borrower shall have provided to the Administrative Agent and each TIFIA Lender Agent;
satisfactory evidence that the Project has been included in (vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viiiA) the results metropolitan transportation improvement program adopted by the [insert name of Administrative Agent’s legal due diligence relating to federally designated metropolitan planning organization for the Transferorregion], (B) the BorrowerState transportation plan, and (C) the Servicer, State transportation improvement program approved by the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of USDOT or its Revolving Notedesignated agency, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, each case to the extent required under by 23 U.S.C. §§ 134 and 135, and 23 U.S.C. § 602(a)(3), as applicable; and the terms financial plan for each such program or plan shall reflect the amount of such CP the TIFIA Loan and all other federal funds to be used for the Project89 as sources of funding for the Project. The Borrower shall have provided evidence to the TIFIA Lender’s program documentssatisfaction, no more than thirty (30), but no less than fourteen (14), days prior to the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading Effective Date, of the then-current assignment by at least two (2) Nationally Recognized Rating Agencies of a public Investment Grade Rating to the Initial Senior Obligations and a public rating of on the TIFIA Loan and no such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) rating has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV reduced, withdrawn or suspended as of the Closing Date).
Effective Date.90 The Borrower shall have delivered to the TIFIA Lender a certificate from the Borrower’s Authorized Representative in the form attached hereto as Exhibit K (bA) By its execution and delivery as to the satisfaction of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the certain conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 13(a) (Conditions Precedent to Effectiveness) as required by the TIFIA Lender, (B) designating the Borrower’s Authorized Representative, and (C) confirming such person’s position and incumbency. The Borrower shall have demonstrated to the TIFIA Lender’s satisfaction that as of the Effective Date the aggregate of all committed sources of funds shown in the Base Case Financial Model and in the Project Budget to pay Total Project Costs have been satisfiedfully and completely committed and allocated to the Borrower by the providers thereof and that such funds shall be sufficient to pay all Total Project Costs necessary to achieve Substantial Completion. [The Borrower shall have delivered to the TIFIA Lender an original fully executed counterpart (or a certified copy) of the Traffic and Revenue Study in form and substance acceptable to the TIFIA Lender [and the Traffic Consultant][, accompanied by a letter from the preparer of such study, dated as of [Insert date that is not more than fifteen (15) Business Days prior to the Effective Date], and certifying that the assumptions and projections contained in the Traffic and Revenue Study are reasonable and may be relied upon by the TIFIA Lender]91.]92 The Borrower shall have provided to the TIFIA Lender certified, complete, and fully executed copies of each Principal Project Contract, together with any amendments, waivers or modifications thereto, in each case that has been entered into on or prior to the Effective Date and each such agreement shall be in full force and effect and in form and substance satisfactory to the TIFIA Lender. The Borrower shall have demonstrated to the TIFIA Lender’s satisfaction that it has obtained all Governmental Approvals necessary to commence construction of the Project and that all such Governmental Approvals are final, non-appealable, and in full force and effect (and are not subject to any notice of violation, breach, or revocation). The Borrower shall have delivered to the TIFIA Lender a certified Base Case Financial Model on or prior to the Effective Date, which Base Case Financial Model shall (A) demonstrate that projected Project Revenues are sufficient to meet the Loan Amortization Schedule, (B) demonstrate a Total Debt Service Coverage Ratio for each Calculation Period through the Final Maturity Date that is not less than [____], (C) demonstrate a TIFIA Loan Life Coverage Ratio for each Calculation Date through the Final Maturity Date that is not less than [____],93 (D) not reflect (1) the commencement of amortization of the principal amount of any Senior Obligations before the Debt Service Payment Commencement Date, (2) the payment of any interest on any Pari Passu Obligations or Subordinated Obligations before the Debt Service Payment Commencement Date, or (3) the commencement of amortization of the principal amount of any Pari Passu Obligations or Subordinated Obligations before the commencement of the amortization of the principal amount of the TIFIA Loan, and (E) otherwise be in form and substance acceptable to the TIFIA Lender. The Borrower shall have (A) provided evidence satisfactory to the TIFIA Lender that the Borrower is authorized, pursuant to [insert state or municipal code reference authorizing statutory ability to create a lien], to pledge, assign, and grant the Liens on the Trust Estate purported to be pledged, assigned, and granted pursuant to the Indenture Documents, without the need for notice to any Person, physical delivery, recordation, filing or further act, (B) recorded or filed, or caused to be recorded or filed, for record in such manner and in such places as are required all documents and instruments, and taken or caused to be taken all other actions, as are necessary or desirable to establish and enforce the Trustee’s Lien on the Trust Estate (for the benefit of the Secured Parties) to the extent contemplated by the Indenture Documents, and (C) paid, or caused to be paid, all taxes and filing fees that are due and payable in connection with the execution, delivery or recordation of any Indenture Documents or any instruments, certificates or financing statements in connection with the foregoing.94 The Borrower shall have paid in full all invoices delivered by the TIFIA Lender to the Borrower as of the Effective Date for the reasonable fees and expenses of the TIFIA Lender’s counsel and financial advisors and any auditors or other consultants employed by the TIFIA Lender for the purposes hereof (such reasonableness to be determined in accordance with Part 31 of the Federal Acquisition Regulation). The Borrower shall have (A) provided evidence satisfactory to the TIFIA Lender of compliance with NEPA, and (B) complied with all applicable requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. § 4601 et seq.) and Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) and shall have provided evidence satisfactory to the TIFIA Lender of such compliance upon request by the TIFIA Lender. The TIFIA Lender shall have delivered its initial TIFIA Lender’s Authorized Representative certificate. The Borrower shall have (A) obtained a Federal Employer Identification Number, (B) obtained a Data Universal Numbering System number, and (C) registered with, and obtained confirmation of active registration status from, the federal System for Award Management (xxx.XXX.gov).95 [The Borrower shall have delivered to the TIFIA Lender (A) certificates of insurance evidencing (1) that the Borrower and each applicable Principal Project Party has obtained insurance with respect to the Project and the Borrower, as applicable, that meets the requirements of Section 16(f) (Insurance) and (2) that each liability policy (other than workers’ compensation insurance) reflects the TIFIA Lender as an additional insured and (B) at the TIFIA Lender’s request, copies of such insurance policies.]96 The Borrower shall have provided to the TIFIA Lender evidence that the Borrower [and each other Borrower Related Party] is duly organized and validly existing under the laws of its jurisdiction of formation, with full power, authority and legal right to own its properties and carry on its business and governmental functions as now conducted, including the following documents, each certified by the Borrower’s Authorized Representative [(or, with respect to a Borrower Related Party, such Borrower Related Party’s authorized representative)]: (A) a copy of its Organizational Documents, as in effect on the Effective Date (and certified by the Secretary of State of the State or the state of its formation, to the extent applicable), which Organizational Documents shall be in full force and effect and shall not have been amended since the date of the last amendment thereto shown on the certificate, (B) a copy of all resolutions authorizing [the Borrower] [each Borrower Related Party] to execute and deliver, and to perform its respective obligations under, the TIFIA Loan Documents to which it is a party, and such resolutions have not been subsequently modified, rescinded or amended, are in full force and effect in the form adopted, and are the only resolutions adopted by the [Borrower] [Borrower Related Parties] relating to the matters described therein, and (C) a copy of such further instruments and documents as are necessary, appropriate or advisable to effectuate the foregoing resolutions and to consummate and implement the transactions contemplated by such resolutions and the TIFIA Loan Documents. The Borrower shall have provided the TIFIA Lender records of the Eligible Project Costs incurred prior to the Effective Date, in form and substance satisfactory to the TIFIA Lender and in sufficient time prior to the Effective Date to permit the TIFIA Lender and the [FHWA Division Office][insert other USDOT modal agency field office, if applicable] to review such costs. The Borrower shall have provided to the TIFIA Lender certified, complete and fully executed copies of each performance security instrument delivered to or by the Borrower pursuant to any Principal Project Contract as of the Effective Date, each of which shall be (A) in compliance with the requirements for such performance security pursuant to the applicable Principal Project Contract, and (B) in full force and effect. The representations and warranties of the Borrower set forth in this Agreement (including Section 14 (Representations and Warranties of Borrower)) and in each other Related Document shall be true and correct, as of the Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case, such representations and warranties shall be true and correct as of such earlier date).
Appears in 1 contract
Samples: Tifia Loan Agreement
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) This Agreement The Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested.
(b) The Borrower shall have paid all accrued fees and agreed expenses of the Agent, the Arrangers and the Lenders, including but not limited to all fees payable pursuant to the Fee Letter, and the reasonable accrued fees and expenses of counsel to the Agent that have been invoiced at least one Business Day prior to the Effective Date.
(c) On the Effective Date, the following statements shall be effective upontrue and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, and no Lender shall be obligated to make any Advance hereunder from and after dated the Closing Effective Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentstating that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment The representations and warranties contained in Section 4.01 are true and correct on and as of the Contribution Agreement) Effective Date, both before and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, after giving effect to the parties hereto and thereto Initial Borrowing and the Administrative application of the proceeds thereof, as though made on and as of such date; and
(ii) No event has occurred and is continuing, or would result from the Initial Borrowing or the application of the proceeds thereof, that constitutes a Default.
(d) The Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender the Notice of Initial Borrowing pursuant to Section 2.02.
(e) The Agent shall reasonably request in connection with the transactions contemplated by this Agreement, have received on or prior to before the Closing DateEffective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent;Agent and the Lenders:
(i) Receipt by the Agent of executed counterparts of this Agreement properly executed by a duly authorized officer of the Borrower and by each Lender.
(ii) all reasonable up-front expenses and fees (including legal feesThe Notes, any fees required under the Fee Letters) that are invoiced at or prior payable to the Closing Date shall have been paid in full;order of the Lenders to the extent requested by any Lender pursuant to Section 2.14(a).
(iii) all other acts and conditions (including, without limitation, The articles of incorporation of the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required Borrower certified to be done true and performed complete as of a recent date by the appropriate governmental authority of the state or other jurisdiction of its incorporation and certified by a secretary, assistant secretary or associate secretary of the Borrower to have happened prior to be true and correct as of the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;Effective Date.
(iv) in the reasonable judgment The bylaws of the Administrative AgentBorrower certified by a secretary, there has not been any change after assistant secretary or associate secretary of the date hereof in Applicable Law which adversely affects any Lender’s or Borrower to be true and correct as of the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Effective Date.
(v) any Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all information submitted documents evidencing other necessary corporate action, third party consents and governmental approvals, if any, with respect to this Agreement and the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;Notes.
(vi) A certificate of the Administrative Agent shall have received all documentation secretary, assistant secretary or associate secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other information requested by documents to be delivered hereunder.
(vii) A certificate as of a recent date from the Administrative Agent Borrower’s state of incorporation evidencing that the Borrower is in its sole discretion or required by regulatory authorities with respect to good standing in such state.
(viii) A favorable opinion of counsel for the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory acceptable to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;Lenders.
(ix) each applicable Lender A written opinion of Sidley Austin LLP, special New York counsel for the Agent, addressed to the Agent shall have received a duly executed copy and the Lenders, with respect to the enforceability of its Revolving Notethis Agreement and the Notes, if any, issued on the Effective Date, in a principal amount equal form and substance reasonably acceptable to the Commitment of the related Lender;Agent.
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall A written certificate of an Authorized Officer certifying (i) all required regulatory authorizations including the 2013 Order and/or any Subsequent Order in respect of such Credit Extension have receivedbeen obtained, are in full force and effect and, before and after giving effect to the extent required under Borrowing on the terms Closing Date and to the application of the proceeds thereform, the Borrower is in compliance with the provisions of the applicable order; and (ii) before and after giving effect to the Borrowing on the Closing Date and to the application of the proceeds thereform, as though made on and as of such CP Lender’s program documentsdate, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading Indebtedness of the then-current rating of such commercial paper Borrower does not exceed that permitted by such Rating Agency;
(xia) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as applicable resolutions of the Closing Date).
Board of Directors of the Borrower, (b) By its execution applicable Arizona Law, or (c) the 2013 Order or any Subsequent Order, whichever is in force and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedeffect at such time.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This The Supplier and the Customer agree that this Agreement and the obligations of the parties hereunder shall be not become effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agenthas been satisfied:
(i) all exhibits to this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Agreement shall have been duly executed byagreed upon in definitive form, and delivered to, initialed by the parties and attached hereto, it being agreed and acknowledged that certain of the exhibits attached hereto on the date of execution of this Agreement have been identified as "preliminary" and thereto and are subject to further refinement as agreed by the Administrative Agent shall have received such other documentsparties, instrumentswithin specified applicable time limits identified herein, agreements and legal opinions as any Lender Agent shall reasonably request in connection with finalization of the transactions contemplated by this Agreement, on or prior to plans and specifications for the Closing Date, each in form and substance satisfactory to the Administrative AgentPremises;
(ii) all reasonable up-front expenses the Supplier shall have entered into a construction agreement in form and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior terms reasonably satisfactory to the Closing Date shall have been paid in full;Supplier providing for the construction of the Northwind Facilities; and
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and Financial Closing shall have occurred in due and strict compliance with all Applicable Law;
the Customer shall have become the fee owner of the "Aladdin Lands" (iv) as such term is defined in the reasonable judgment of the Administrative AgentDevelopment Agreement), there has not been subject to any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability Customer obligations to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any convey portions thereof to Bazaar and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Music.
(b) By its execution and delivery of this AgreementIn addition, each of the Borrower and the Servicer hereby certifies that each of the conditions it shall be a condition precedent to the effectiveness initial obligation of this Agreement set forth the Supplier to deliver any Service hereunder on the date when such Service is first required to be provided by it hereunder that (i) the Customer shall have complied in this Section 3.01 all material, respects with all of its covenants and Agreements contained herein to be complied with during the period from the date hereof to the date upon which such Service is to be delivered, and (ii) the Customer shall have been satisfiedprovided to the Supplier evidence reasonably satisfactory to the Supplier that the Customer has obtained or is or will use all reasonable efforts to obtain all clearances, permits, licenses and approvals which are necessary for the Customer to construct and/or operate the Premises as contemplated hereby and receive such Services from the Supplier as of such date.
(c) In addition, it shall be a condition precedent to the initial obligation of the Customer to receive any Service hereunder on the date when such Service is first required to be provided hereunder or to pay Contract Capacity Charges or Consumption Charges otherwise required to be received by it hereunder that: (i) the Supplier shall have complied in all material respects with all of its covenants and Agreements contained herein to be complied with during the period from the date hereof to the date when such Service is to be delivered, and (ii) the Supplier shall have provided to the Customer evidence reasonably satisfactory to the Customer that the Supplier has obtained or will use all reasonable efforts to obtain all third party clearances, permits, licenses and approvals which are necessary for the Supplier to construct and/or operate the Northwind Facilities as contemplated hereby.
Appears in 1 contract
Samples: Energy Service Agreement (Bh Re LLC)
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent has been fulfilled to the sole discretion of, or waived in writing by, satisfaction of the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof a. This Amendment shall have been duly executed byand delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof.
b. The Agent shall have received evidence acceptable to it that all action on the part of the Loan Parties necessary for the valid execution, delivery and performance by the Loan Parties of this Amendment shall have been duly and effectively taken.
c. All necessary consents and approvals to this Amendment shall have been obtained. Exhibit 10.1 Executed Version
d. The Administrative Agent shall have received a long form good standing certificate (or equivalent thereto, in the case of the UK Borrower) for each Loan Party from its respective jurisdiction of organization, which good standing certificate shall be certified by the applicable Governmental Authority as of a recent date.
e. Prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
f. Prior to and immediately after giving effect to this Amendment, (i) each of the representations and warranties of the Loan Parties contained in the Credit Agreement, any other Loan Document or in any document or instrument delivered pursuant to or in connection with the Loan Documents or this Amendment, are true and correct on and as of the effective date of this Amendment (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date), and delivered to(ii) no Default or Event of Default exists on the date hereof.
g. The Administrative Agent shall have received, for the sole benefit of Comerica Bank, the parties hereto and thereto amendment fee described in Section 4 below.
h. The Lenders and the Administrative Agent shall have received payment from the Borrower of all costs and expenses required to be paid pursuant to Section 5 of this Amendment.
i. The Administrative Agent shall have received such other documents, instruments, instruments and agreements and legal opinions as any Lender Agent shall it may reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Daterequest, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent has been fulfilled to the sole discretion of, or waived in writing by, satisfaction of the Administrative Agent:
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof This Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and thereto and the hereto. The Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly fully executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation hereof and of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)other document required hereunder.
(b) By its execution [Reserved].
(c) The Borrower shall have (i) [reserved], (ii) paid all expenses and delivery of reimbursements pursuant to Section 10 hereof, to the extent provided to the Borrower at least three (3) Business Days prior to the Third Amendment Effective Date, and (iii) [reserved], it being understood and agreed that the Borrower hereby authorizes the Administrative Agent to pay all such fees and expenses pursuant to this Agreement, each clause (c) by debiting such amounts from the Deposit Accounts of the Borrower maintained with SVB and the Servicer hereby certifies that each payment of the conditions precedent same from such proceeds shall satisfy this clause (c).
(d) [Reserved].
(e) All material Governmental Approvals and consents and approvals of, or notices to, shall have been obtained and be in full force and effect (or waived, and if such waiver is materially adverse to the effectiveness interests of this Agreement set forth the Lenders, with the consent of the Administrative Agent).
(f) Each of the representations and warranties made by any Loan Party in this Section 3.01 or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent (i) such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been satisfiedtrue and correct in all material respects as of such earlier date or (ii) such representations and warranties are qualified by materiality in the text thereof, in which case they shall be true and correct in all respects.
(g) Upon giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Credit Agreement (Appian Corp)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable out-of-pocket up-front expenses and fees (including legal fees, fees and any fees required under any Fee Letter and the Collateral Administrator, Collateral Custodian and Account Bank Fee LettersLetter) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) full and all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative AgentAgent and each Lender, there has not having been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter entering into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viiv) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent; AmericasActive:18709990.5
(v) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vi) in the reasonable judgment of the Administrative Agent and each Lender, there shall have been no material adverse change in the Borrower’s or the Servicer’s underwriting, servicing, collection, operating and reporting procedures and systems since the completion of due diligence by the Administrative Agent and each Lender;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;; and
(ixviii) each applicable Lender the Administrative Agent shall have received a duly executed copy of approval from its Revolving Noteinternal credit committee and all other necessary approvals, as required by the Administrative Agent, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)its sole discretion.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied; provided, that with respect to conditions precedent that expressly require the consent or approval of the Administrative Agent or another party (other than the Borrower or the Servicer), the foregoing certification is only to the knowledge of the Borrower and the Servicer, as applicable, with respect to such consents or approvals.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Conditions Precedent to Effectiveness. (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the upon satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agentprecedent that:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred happened in due and strict compliance with all Applicable Law;
(ivii) in the reasonable judgment of the Administrative Agent, there has not been (x) any change after the date hereof in Applicable Law which adversely affects any Lender’s 's or the Administrative Agent’s 's ability to enter into the transactions contemplated by the Transaction Documents or (y) any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(viii) any and all information submitted to each Lender and the Administrative Agent by the Borrower, the Transferor, Transferor or the Servicer, Solar Management Servicer or any of their Affiliates is trueshall satisfy the requirements set forth in Section 4.01(s) or Section 4.03(h), accurate, complete in all material respects and not misleading in any material respectas applicable;
(viiv) the Administrative Agent each Lender shall have received all documentation and other information requested by the Administrative Agent such Lender in its sole discretion or and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “"know your customer” " and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including, without limitation, the USA PATRIOT Patriot Act, all in form and substance reasonably satisfactory to each Lender;
(v) at least five (5) days prior to the Closing Date, the Borrower shall deliver a Beneficial Ownership Certification;
(vi) the Administrative Agent shall have received on or before the date of such effectiveness the items listed in Schedule I hereto, each in form and substance satisfactory to the Administrative Agent and each Lender AgentLender;
(vii) in the judgment of the Administrative Agent and each Lender, there shall have been no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including in the Borrower's (or the Servicer's) underwriting, on a consolidated basisservicing, or any material portion collection, operating and reporting procedures and systems since the completion of due diligence by the initial proposed Eligible Loan Assets has occurred;Administrative Agent and each Lender; |US-DOCS\148390876.14||
(viii) the results of the Administrative Agent’s legal 's financial, legal, tax and accounting due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to the Administrative Agent;
(ix) each the Borrower shall have paid in full all fees then required to be paid, including all fees required hereunder and under the applicable Lender Fee Letters and the Collateral Administration and Agency Fee Letter and shall have reimbursed the Lenders, the Administrative Agent, the Collateral Custodian, the Account Bank and the Collateral Agent for all fees, costs and expenses of closing the transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by the Lenders and the Administrative Agent; and
(x) with respect to any Advance to be made on the Closing Date, the Lenders and the Administrative Agent shall have received a duly executed copy Notice of its Revolving Note, in a principal amount equal Borrowing with respect to such Advance demonstrating that immediately after the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms making of such CP Lender’s program documentsinitial Advance, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not no Borrowing Base Deficiency shall result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)therefrom.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 (other than such conditions precedent subject to the judgment or satisfaction of the Administrative Agent or any Lender) have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedentprecedent have been fulfilled to the satisfaction of (and in form and substance satisfactory to, as determined in applicable) the sole discretion of, or waived in writing byAdministrative Agent (such date, the Administrative Agent:“Seventh Amendment Effective Date”):
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof 4.1 This Amendment shall have been duly executed by, and delivered to, by the respective parties hereto and thereto and the hereto. The Administrative Agent shall have received a fully executed copy hereof.
4.2 All necessary consents and approvals to this Amendment shall have been obtained by the Loan Parties.
4.3 After giving effect to this Amendment and subject to the qualifications set forth in Section 6.1, each of the representations and warranties herein and in the Credit Agreement and the other Loan Documents (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of the Seventh Amendment Effective Date as if made on and as of such date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date.
4.4 The payment by the Borrower to the Administrative Agent, for the ratable benefit of each Lender party to this amendment based on such Lender’s Revolving Percentage, an amendment fee equal to .10% of the Revolving Commitment of each Lender party hereto. For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has executed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other documentsmatter either sent (or made available) by the Administrative Agent to such Lender for consent, instrumentsapproval, agreements and legal opinions as any Lender acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender, unless an officer of the Administrative Agent shall reasonably request in connection with responsible for the transactions contemplated by this Agreement, the Loan Documents shall have received notice from such Lender prior to the Seventh Amendment Effective Date specifying such Lender’s objection thereto and such objection shall not have been withdrawn by notice to the Administrative Agent to that effect on or prior to the Closing Seventh Amendment Effective Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. The amendments set forth in Section 2 of this First Amendment and the consents of the Administrative Agent, the Issuer and the Participant set forth in Section 3 of this First Amendment shall become effective as of the date (a) This Agreement the "First Amendment Effective Date"), as specified by the Administrative Agent, when counterparts hereof shall be effective uponhave been duly executed and delivered by the Participant, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any LenderAdministrative Agent, the Collateral CustodianIssuer, each of the Backup Servicer or Applicants and each of the Administrative Agent be obligated Guarantors, and when each of the conditions precedent set forth in this Section 5 shall have been fulfilled to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
A. The Administrative Agent shall have received each of the following documents, each of which shall be satisfactory to the Administrative Agent in form and substance:
(i1) Certified copies of all corporate action and (if necessary) stockholder action taken by each Applicant and each Guarantor approving this First Amendment and the Agreement, each Liquidity Agreementas amended hereby, each Hedging Agreement, each collateral assignment agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, a certificate setting forth the assignment resolutions of the Contribution AgreementBoards of Directors of each Applicant and each Guarantor adopted in respect of the transactions contemplated hereby and thereby).
(2) A certificate of each Applicant and all each Guarantor in respect of each of the officers (i) who is authorized to sign this First Amendment on its behalf and (ii) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request communications in connection with the Agreement, as amended hereby, and the transactions contemplated by this Agreementthereby and hereby. The Administrative Agent, the Issuer and the Participant may conclusively rely on such certificate until the Administrative Agent receives notice in writing from any Applicant or prior either Guarantor, respectively, to the Closing Date, contrary.
(3) A certificate of each in form Applicant and substance satisfactory each Guarantor as to (i) the absence of changes to the certified copies of the certificate of incorporation and by-laws of each Applicant and each Guarantor delivered to the Administrative Agent;
, the Issuer and the Participant on September 28, 1995 and (ii) all reasonable up-front expenses the continued good standing of each Applicant and fees each Guarantor in each jurisdiction in which each Applicant and each Guarantor are incorporated or qualified to do business.
(including legal fees, any fees required under the Fee Letters4) that are invoiced at or prior A certificate of a senior officer of each Applicant and each Guarantor to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as effect set forth in Schedule IV as Section 5.B of the Closing Date)this First Amendment.
(b5) By its execution and delivery of this Agreement, each Evidence of the Borrower and the Servicer hereby certifies that each fulfillment of all the conditions precedent to the effectiveness of this Agreement the consent to the Contemplated Change of Control under, and the amendments to, the Amended Revolving Credit Agreement, which shall be substantially in the same form as the consent and amendments set forth in this First Amendment.
(6) Such other documents and information as the Administrative Agent, the Issuer or the Participant may reasonably request, including, without limitation, all requisite governmental approvals and filings.
B. As of such date:
(1) No Default or Event of Default shall have occurred and be continuing; and
(2) The representations and warranties made by each of the Applicants and each of the Guarantors in Section 3.01 have been satisfied4 hereof and in any other certificate or other document delivered in connection with this First Amendment or the Agreement, as amended hereby, shall be true, correct and complete on and as of each such date with the same force and effect as if made on and as of such date. The Administrative Agent will promptly notify the other parties of the occurrence of the First Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date (such first date, the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) This Agreement The Administrative Agent shall not have received on or prior to the Effective Date notice from Required Lenders that a Material Adverse Change since December 31, 2021, has occurred and is continuing.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be effective upondetermined adversely and, and no Lender if determined adversely, would have a Material Adverse Effect or (ii) purports to adversely affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby.
(c) The Borrower shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or have notified the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing byas to the proposed Effective Date, and the Administrative Agent shall have notified each Lender thereof.
(d) The Borrower shall have paid all accrued and invoiced fees and reasonable expenses of the Administrative Agent:, the Lenders and the Issuing Banks (including the accrued and invoiced reasonable fees and out of pocket expenses of counsel to the Administrative Agent).
(ie) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitationOn the Effective Date, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof following statements shall have been duly executed by, and delivered to, the parties hereto and thereto be true and the Administrative Agent shall have received such other documentsfor the account of each Lender and Issuing Bank a certificate signed by the President, instrumentsa Vice President or a Financial Officer of the Borrower, agreements dated the Effective Date, stating that:
(i) The representations and legal opinions warranties contained in Section 4.01 of this Agreement are correct in all material respects on and as any Lender of the Effective Date; and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Administrative Agent shall reasonably request in connection with the transactions contemplated by this Agreement, have received on or prior to before the Closing DateEffective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent;Agent and in sufficient copies for each Lender:
(i) This Agreement, executed by each of the parties hereto (which, subject to Section 8.12(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page).
(ii) Certified copies of the resolutions of the board of directors of the Borrower approving this Agreement of the Borrower, and of all reasonable up-front expenses documents evidencing other necessary corporate action and fees (including legal feesgovernmental approvals, any fees required under the Fee Letters) that are invoiced at or prior if any, with respect to the Closing Date shall have been paid in full;this Agreement.
(iii) all other acts A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and conditions (including, without limitation, true signatures of the obtaining officers of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required Borrower authorized to be done and performed and to have happened prior to the execution, delivery and performance of sign this Agreement and all related Transaction Documents and the other documents to constitute be delivered by the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;Borrower hereunder.
(iv) A guarantee (the “Guarantee”) duly executed by Ovintiv Canada ULC, substantially in the reasonable judgment of form previously provided to the Administrative Agent, there has not been any change after together with (A) certified copies of the date hereof in Applicable Law which adversely affects any Lender’s or resolutions of the Administrative Agent’s ability board of directors of Ovintiv Canada ULC approving its Guarantee, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to enter into such Guarantee and (B) a certificate of an officer of Ovintiv Canada ULC certifying the transactions contemplated by names and true signatures of the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;officers of Ovintiv Canada ULC authorized to sign such Guarantee.
(v) any An opinion of Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx LLP, special New York counsel to the Borrower and all information submitted certain of its U.S. Subsidiaries, substantially in the form of Exhibit D hereto or otherwise in a form reasonably satisfactory to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;Agent.
(vi) An opinion of Blake, Cxxxxxx & Gxxxxxx LLP, special Canadian counsel to Ovintiv Canada ULC, substantially in the form of Exhibit E hereto or otherwise in a form reasonably satisfactory to the Administrative Agent.
(g) Borrower shall have made payment in full of the aggregate principal amount of all advances outstanding, under the Existing Credit Agreement, together with accrued interest thereon and all fees and other amounts invoiced and owing to the lenders thereunder to the Effective Date.
(h) The Administrative Agent shall have received received, prior to the Effective Date, all documentation and other information regarding the Borrower and its Subsidiaries that will execute a Guarantee pursuant to Section 3.01(f)(iv) requested by the Administrative Agent in its sole discretion or required by regulatory authorities connection with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding the Patriot Act to the extent requested in writing of the Borrower at least ten (10) days prior to the Effective Date.
(i) Provided (i) such information is reasonably requested from the Borrower and/or Ovintiv Canada ULC at least five (5) Business Days prior to the Effective Date and (ii) Borrower and/or Ovintiv Canada ULC qualify as a “legal entity customer” under the Beneficial Ownership Regulation, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to then the Administrative Agent and each requesting Lender Agent;
shall receive, at least three (vii3) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating days prior to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving NoteEffective Date, in connection with the Beneficial Ownership Regulation, a principal amount equal Beneficial Ownership Certification with respect to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)and/or Ovintiv Canada ULC.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Ovintiv Inc.)
Conditions Precedent to Effectiveness. (a) This Agreement Amendment shall not be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction until each of the following conditions precedent, as determined in precedent have been fulfilled to the sole discretion of, or waived in writing by, satisfaction of the Administrative Agent:
(ia) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, This Amendment and the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof First Amendment Fee Letter shall have been duly executed byand delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy of this Amendment and the First Amendment Fee Letter.
(b) All necessary consents and approvals to this Amendment shall have been obtained.
(c) Immediately, after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(d) Immediately after giving effect to this Amendment, the representations and warranties set forth in this Amendment, the Credit Agreement and the other Loan Documents, as amended by this Amendment, to which it is a party (i) that is qualified by materiality shall be true and correct, and delivered to(ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such date as if made on and as of such date, except to the parties hereto extent any such representation and thereto warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects (or all respects, as applicable) as of such earlier date.
(e) The Lenders and the Administrative Agent shall have received such all fees required to be paid (including for the avoidance of doubt the fees specified in the First Amendment Fee Letter), and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel required to be paid hereunder or under any other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this AgreementLoan Document), on or prior to before the Closing First Amendment Effective Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Agreement is subject to the condition precedent that the Administrator and each Purchaser Agent shall (ax) This Agreement be reasonably satisfied that the Administrator and each of the other Secured Parties shall be effective uponhave protections provided for in the Interim Order and, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lenderextent then entered, the Collateral CustodianFinal Order, including the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction protection of Section 364(e) of the following conditions precedent, as determined in the sole discretion of, Bankruptcy Code with respect to any priority or waived in writing by, the Administrative Agent:
lien granted or debt incurred pursuant to said Interim Order or Final Order and (iy) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreementreceived, on or prior to before the Closing Datedate hereof, each of the following, each in form and substance (including the date thereof) reasonably satisfactory to the Administrative Administrator and each Purchaser Agent:
(a) each of the documents, agreements (in fully executed form), opinions of counsel, certificates and other deliverables listed on the closing memorandum attached as Annex F hereto, in each case, in form and substance acceptable to the Administrator;
(iib) evidence of payment by the Seller of all reasonable up-front expenses accrued and fees (including legal unpaid fees, any fees required under costs and expenses to the Fee Letters) that are invoiced at extent then due and payable on or prior to the Closing Date date hereof, including any such costs, fees and expenses arising under or referenced in Section 6.4 of the Agreement (as amended hereby) (including all attorney fees that have been invoiced at least one (1) Business Day prior to the date that the Interim Order is entered by the Bankruptcy Court);
(c) a copy of the Interim Order entered by the Bankruptcy Court that is in full force and effect and has not been vacated or reversed, is not subject to a stay, and has not been modified or amended (except for modifications or amendments approved in writing by the Administrator and the Majority Purchaser Agents, in each case, acting in their reasonable discretion); and
(d) evidence that (i) all “first day orders” and all related pleadings intended to be entered on or prior to the entry of the Interim Order (including “a cash management order”) shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, entered by the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed Bankruptcy Court and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all be reasonably satisfactory in form and substance to the Administrator and (ii) forms of “second day orders” filed but not yet entered shall be reasonably satisfactory in form and substance to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the businessAdministrator, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating it being understood that drafts approved by counsel to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal Administrator prior to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)Filing Date are reasonably satisfactory.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cloud Peak Energy Inc.)
Conditions Precedent to Effectiveness. (a) This The effectiveness of this Agreement shall be effective upon, and no Lender shall be obligated is subject to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in : The Lender Parties shall be reasonably satisfied with the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, organizational and legal structure and capitalization of each Liquidity Agreement, Loan Party and each Hedging Agreement, each collateral assignment agreement of its Subsidiaries (including, without limitation, the assignment terms and conditions of the Contribution Agreement) Constitutive Documents and each class of Equity Interests in the Borrower and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization). All of the Governmental Authorizations, and all of the consents, approvals and authorizations of, notices and filings to or with, and other Transaction actions by, any other Person necessary in connection with the execution, delivery or performance of this Agreement, any of the Loan Documents and all or any of the other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof transactions contemplated thereby shall have been duly executed byobtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no Requirement of Law shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the execution, delivery or performance of this Agreement, any of the Loan Documents or any of the other transactions contemplated thereby. Before giving effect and delivered toimmediately after giving pro forma effect to the execution and delivery of this Agreement, no Material Adverse Change shall have occurred since December 31, 2005. There shall exist no action, suit, investigation, litigation, arbitration or proceeding pending or, to the parties hereto best knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries or any of the property or assets thereof in any court or before any arbitrator or by or before any Governmental Authority of any kind (i) that, either individually or in the aggregate, is reasonably expected to have a Material Adverse Effect or (ii) which purports to affect the legality, validity, binding effect or enforceability of this Agreement, any of the Loan Documents or any of the other transactions contemplated thereby. The execution and thereto delivery of this Agreement shall have been consummated or shall be consummated on the Effective Date in compliance with all applicable Requirements of Law. All of the fees and expenses of the Agents that are required to be paid by the Borrower pursuant to Section 2.08(c) shall have been or, concurrently with the effectiveness of this Agreement on the Effective Date shall be, paid in full. The Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to before the Closing Date, each Effective Date the following in form and substance reasonably satisfactory to the Administrative Agent;
it (iiunless otherwise specified): The Notes, (if any) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior payable to the Closing Date shall have been paid in full;
order of the Lenders. Certified copies of the resolutions of the board of directors (iiior Persons performing similar functions) all other acts of each Loan Party approving the execution, delivery and conditions (including, without limitation, performance of this Agreement and each of the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings Loan Documents to which it is or registrations) required is to be done a party, and performed and to have happened prior of all documents evidencing necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to the execution, delivery and performance of this Agreement and any of the Loan Documents to which it is or is to be a party. A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) and certifying (A) that such amendments are the only amendments to such Person's certificate or articles of incorporation (or similar Constitutive Document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all related Transaction Documents franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. A certificate of the Secretary or an Assistant Secretary (or a Person performing similar functions) of each Loan Party certifying as to: the absence of any amendments to constitute the same legalcertificate or articles of incorporation (or similar Constitutive Document) of such Loan Party since the date of the Secretary of State's (or equivalent Governmental Authority's), valid and binding obligations, enforceable or the Secretary's or Assistant Secretary's (or equivalent person's) certificate referred to in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
clause (iv) of this Section 3.01(g), or any steps taken by the board of directors (or persons performing similar functions) or the shareholders, partners, members or equivalent persons of such Loan Party to effect or authorize any further amendment, supplement or other modification thereto; the accuracy and completeness of the bylaws (or similar Constitutive Documents) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Loan Party referred to in clause (ii) of this Section 3.01(g) were adopted and on the Effective Date (a copy of which shall be attached to such certificate); and the names and true signatures of the officers of such Loan Party authorized to sign each of the Loan Documents to which it is or is to be a party and the other agreements, instruments and documents to be delivered hereunder and thereunder. A guarantee, substantially in the reasonable judgment form of Exhibit F hereto (the "Subsidiaries Guarantee"), duly executed by each of the Administrative AgentDomestic Subsidiaries that are Material Subsidiaries other than any such Subsidiary that is subject to regulation under Medicare Part D as a prescription drug plan or under state insurance regulations. Copies, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated certified by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by a Responsible Officer of the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(viA) the Administrative Agent shall have received all documentation audited Consolidated financial statements of the Borrower and other information requested its Subsidiaries for the Fiscal Year ended December 31, 2005, accompanied by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to an unqualified opinion of KPMG, LLP, independent accountants of the Borrower, and (B) forecasts prepared by management of the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulationsBorrower, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Lender Parties, of balance sheets, income statements on an annual basis and cash flow statements for the Fiscal Year in which the Effective Date occurs and on an annual basis for each Fiscal Year thereafter through the scheduled Termination Date. A duly completed and executed Notice of Borrowing for each Borrowing to be made on the Effective Date and Notice of Issuance for each Letter of Credit to be issued on the Effective Date. A favorable opinion of King & Spalding, counsel for the Loan Parties, in substantially the form of Exhibit D hereto, and addressing such other matters as any of the Lender Parties through the Administrative Agent may reasonably request. That all amounts due and each Lender Agent;
(vii) no material adverse change on payable under the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent Existing Credit Agreement shall have received a duly executed copy of its Revolving Note, been paid in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency full and that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 all commitments thereunder have been satisfiedterminated.
Appears in 1 contract
Samples: Credit Agreement (Caremark Rx Inc)
Conditions Precedent to Effectiveness. This Agreement shall become effective, and the obligations of the Lenders to make Revolving Credit Advances and of the Issuing Lenders to issue Letters of Credit hereunder shall become effective, on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) This Agreement There shall be effective uponhave occurred no Material Adverse Change since September 30, and 2018.
(b) There shall exist no Lender shall be obligated to make action, suit, investigation, litigation or proceeding affecting the Borrower or any Advance hereunder from and after the Closing Dateof its Subsidiaries pending or threatened before any court, nor shall any Lender, the Collateral Custodian, the Backup Servicer governmental agency or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters disclosed in the SEC Reports prior to the date hereof (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, Agreement or any Note or the assignment consummation of the Contribution Agreement) transactions contemplated hereby, and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof there shall have been duly executed by, no change in the Disclosed Litigation that would have a Material Adverse Effect.
(c) All governmental and delivered to, the parties hereto third party consents and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request approvals necessary in connection with the transactions contemplated by this Agreement, on or prior hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Closing Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid, or will pay with the initial Advance on the Effective Date, all accrued fees and expenses of the Agent and the Lenders (including, to the extent invoiced, the reasonable and documented accrued fees and expenses of counsel to the Agent).
(f) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to a Material Adverse Effect shall be correct in all respects) on and as of the Effective Date,
(ii) No Material Adverse Change has occurred since September 30, 2018, and
(iii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Administrative Agent and (except for the Revolving Credit Notes and the Swing Line Note) in sufficient copies for each Lender:
(i) Either (x) a counterpart of this Agreement signed on behalf of the Agent;, the Borrower and each Initial Lender or (y) evidence satisfactory to the Agent (which may include an electronic transmission) that such party has signed a counterpart of this Agreement.
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior The Revolving Credit Notes to the Closing Date shall have been paid in full;Lenders to the extent requested by any Lender pursuant to Section 2.17, and a Swing Line Note to the Swing Line Lender to the extent requested by the Swing Line Lender.
(iii) all other acts Such documents and conditions (including, without limitation, certificates as the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior Agent may reasonably request relating to the executionorganization, delivery existence and performance good standing of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;Borrower.
(iv) in the reasonable judgment Certified copies of the Administrative Agentresolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, there has not been any change after and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;Notes.
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance A certificate of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, Secretary or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Servicer hereby certifies that each of Notes and the conditions precedent other documents to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedbe delivered hereunder.
Appears in 1 contract
Samples: Credit Agreement (Ugi Utilities Inc)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the "Effective Date") on which the following conditions precedent have been satisfied:
(a) This Agreement shall be effective upon, All governmental and no Lender shall be obligated to make any Advance hereunder from third party consents and after approvals necessary in connection with the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Loan Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed byobtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, all applicable waiting periods shall have expired without any action being taken by any competent authority and delivered tono law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions on the Loan Documents.
(b) The Borrower shall have paid all accrued and invoiced fees and expenses of the Agents and the Lenders (including the accrued and invoiced fees and expenses of counsel to the Agents).
(c) On the Effective Date, the parties hereto and thereto following statements shall be true and the Administrative Agent shall have received such other documentsfor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, instrumentsdated the Effective Date, agreements stating that:
(i) The representations and legal opinions warranties contained in each Loan Document are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(d) There shall have occurred no Material Adverse Change since January 2, 1999, and all information provided by or on behalf of the Borrower to the Lenders shall be true and correct in all material aspects.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Lender Agent shall reasonably request in connection with Loan Party or any of its Subsidiaries, including any Environmental Action, pending or threatened before any court, governmental agency or arbitrator that (i) purports to affect the transactions contemplated by legality, validity or enforceability of this Agreement, any other Loan Document or (ii) is or would be reasonably likely to have a Material Adverse Effect, except, in the case of this clause (ii), for any such action, suit, investigation, litigation or proceeding described on Schedule 4.01(g) hereto.
(f) The Lenders shall be reasonably satisfied that the Existing 364 Day Credit Facility has been (or concurrently will be) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.
(g) The Lenders and the Agents shall be reasonably satisfied with the corporate and legal structure and capitalization of the Borrower and the Guarantors, including, without limitation, the charter and by-laws of the Borrower and the Guarantors.
(h) The Administrative Agent shall have received on or prior to before the Closing DateEffective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent;Agent and in sufficient copies for each Lender:
(i) A guaranty in substantially the form of Exhibit F (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Group Guaranty"), duly executed by Group.
(ii) all reasonable up-front expenses and fees A guaranty in substantially the form of Exhibit G (including legal feestogether with each other guaranty delivered pursuant to Section 5.01(j), any fees required under in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the Fee Letters) that are invoiced at or prior to "Subsidiary Guaranty"), duly executed by the Closing Date shall have been paid in full;Guarantors (other than Group).
(iii) all Certified copies of the resolutions of the Board of Directors of the Borrower and each other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of Loan Party approving this Agreement and each other Loan Document to which it is or is to be a party and the transactions contemplated hereby, and of all related Transaction Documents documents evidencing other necessary corporate action and governmental approvals, if any, with respect to constitute the same legal, valid this Agreement and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;each other Loan Document.
(iv) in the reasonable judgment A certificate of the Administrative AgentSecretary or an Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Agreement, there has not been any change after each other Loan Document to which they are or are to be parties and the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability other documents to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;be delivered hereunder and thereunder.
(v) If requested by any and all information submitted Lender, a Revolving Credit Note to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any order of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;such Lender.
(vi) A favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Administrative Agent shall have received all documentation and other information requested Loan Parties, in substantially the form of Exhibit E-1 hereto with such changes as may approved by the Administrative Agent in its sole discretion or required by regulatory authorities with respect and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(vii) A favorable opinion of Xxxxxxx X. Xxxxxxxxxxx, General Counsel for the Borrower, in substantially the Transferor form of Exhibit E-2 hereto with such changes as may approved by the Administrative Agent and as to such other matters as any Lender through the Servicer under applicable “know your customer” and anti-money laundering rules and regulationsAdministrative Agent may reasonably request.
(viii) A favorable opinion of Shearman & Sterling, includingcounsel for the Arrangers, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;Arrangers.
(ix) each applicable Lender Agent shall have received a The Existing Five Year Credit Agreement, in form and substance satisfactory to the Arrangers, duly executed copy of its Revolving Noteby all parties required thereunder and the Trade Credit Facility, in a principal amount equal form and substance satisfactory to the Commitment of the related Lender;Arrangers, duly executed by all parties required thereunder.
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, Copies of amendments to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each other credit facilities of the Borrower and Group and their respective Subsidiaries which are necessary to make such facilities consistent with the Servicer hereby certifies that each of the conditions precedent Existing Five Year Credit Agreement, in form and substance reasonably satisfactory to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfiedArrangers.
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) This Agreement shall be becomes effective upon, and no Lender shall be is obligated to make any Advance hereunder from and after the Closing DateAdvance, nor shall is any Lender, the Collateral Custodian, the Backup Servicer Calculation Agent or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, hereunder until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements agreements, instruments, certificates and opinions of counsel other documents listed on Schedule I hereto or counterparts hereof or thereof shall II have been duly executed by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agentthereto;
(ii) all reasonable up-front expenses and fees (including reasonable and documented out-of-pocket legal fees, fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at or least three (3) Business Days prior to the Closing Date shall have been paid in full;
(iii) the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all other acts material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and conditions correct in all respects as so qualified) (including, without limitation, as certified by the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable LawBorrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any Material Adverse Effect material adverse conditions on the Borrower or material disruption in such other transactions or that could seek or threaten any of the financialforegoing, banking and no law or commercial loan or capital markets generallyregulation is applicable which could reasonably be expected to have such effect;
(v) any and all information submitted no action, proceeding or investigation has been instituted or, to the Administrative Agent knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the Borrower, other Transaction Documents or the Transferor, consummation of the Servicer, Solar Management transactions contemplated hereby or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respectthereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB- or higher) from a Nationally Recognized Statistical Rating Organization, such as Xxxxx Bond Rating Agency, and the Initial Lender shall have a received a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent shall have has received all documentation and other information requested by the Administrative Agent in its sole discretion acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower, the Transferor Borrower and the Servicer Calculation Agent under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of or waived by the Administrative Agent (the date of such satisfaction or waiver, the “Effective Date”):
(a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Amendment shall have been duly executed byand delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof.
(b) All necessary consents and approvals to this Amendment shall have been obtained.
(c) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(d) After giving effect to this Amendment, each of the representations and warranties herein and in the Credit Agreement and the other Loan Documents (i) that is qualified by materiality shall be true and correct, and delivered to(ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such date as if made on and as of such date, except to the parties hereto extent any such representation and thereto warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects (or all respects, as applicable) as of such earlier date. 2125439.8
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer, dated as of the Effective Date, in form and substance reasonably satisfactory to it certifying that the conditions specified in Section 3(b), Section 3(c) and Section 3(d) above have been satisfied.
(f) The Administrative Agent shall have received a fully executed copy of the First Amendment Fee Letter, dated as of the date hereof, between the Borrower and the Administrative Agent, and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;all fees specified therein.
(iig) all reasonable up-front expenses The Lenders and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation the, fees costs and other information requested by expenses required to be paid pursuant to Section 6 of this Amendment (including the Administrative Agent in its sole discretion or reasonable and documented fees and disbursements of legal counsel required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;be paid thereunder).
(viih) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of The Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy Liquidity Report as of its Revolving NoteApril 30, in a principal amount equal 2017 (it being agreed, for the avoidance of doubt, that such report shall not be required to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency demonstrate that the execution and delivery Loan Parties have at least $100,000,000 of this Agreement will not result cash or Cash Equivalents held by any Loan Party in a withdrawal Deposit Accounts or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant Securities Accounts subject to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing DateControl Agreements maintained with SVB or an Affiliate thereof).
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Fitbit Inc)
Conditions Precedent to Effectiveness. (a) This The effectiveness of the amendment and restatement of the Original Credit Agreement shall be effective upon, and no Lender shall be obligated is subject to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent:
(a) each of the Borrower, as determined in the sole discretion of, or waived in writing byAgent, the Administrative AgentAgent and the Required Lenders shall have executed and delivered to the Agent counterparts of this Agreement;
(b) each of the Guarantors and Ericsson shall have executed and delivered to the Agent an Acknowledgment and Consent;
(c) Powertel shall have executed and delivered to the Agent the Parent Guaranty;
(d) each of the following representations and warranties of the Borrower shall be true, correct and complete on and as of the date hereof:
(i) The execution, delivery and performance by the Borrower of this AgreementAgreement and the other Loan Documents to which it is a party are within the Borrower's corporate powers, each Liquidity Agreementhave been duly authorized by all necessary corporate action and do not (i) contravene the Borrower's charter or bylaws, each Hedging Agreement(ii) violate any law, each collateral assignment agreement rule or regulation (including, without limitation, the assignment Regulation X of the Contribution AgreementBoard of Governors of the Federal Reserve System), or any order, writ, judgment, injunction, decree, determination or award, binding on or affecting the Borrower or any of its Subsidiaries or any of their properties, the effect of which would have a Material Adverse Effect, or (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower, or any of its Subsidiaries or any of their properties except where such conflict would not have a Material Adverse Effect;
(ii) No authorization or approval or other action by, and all no notice to or filing with, any governmental authority or regulatory body or any other Transaction third party is required for the due execution, delivery or performance by the Borrower of this Agreement or any of the Loan Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have to which it is a party;
(iii) This Agreement has been duly executed by, and delivered toby the Borrower. This Agreement and each of the other Loan Documents to which the Borrower is a party are legal, valid and binding obligations of the parties hereto Borrower enforceable against the Borrower in accordance with their respective terms;
(iv) The representations and thereto warranties contained in Article IV of this Agreement are true, correct and complete in all material respects on and as of the Administrative effective date hereof to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date; and
(v) No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Agreement that would constitute a Default; and
(e) the Agent shall have received such other documents, instruments, agreements and legal opinions approvals or documents as the Agent or any Lender Agent shall (through the Agent) may reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender Agent;
(vii) no material adverse change on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion of the initial proposed Eligible Loan Assets has occurred;
(viii) the results of Administrative Agent’s legal due diligence relating to the Transferor, the Borrower, the Servicer, the Eligible Loan Assets and the transactions contemplated hereunder are satisfactory to Administrative Agent;
(ix) each applicable Lender Agent shall have received a duly executed copy of its Revolving Note, in a principal amount equal to the Commitment of the related Lender;
(x) Each Liquidity Bank whose commercial paper is being rated by one or more Rating Agency shall have received, to the extent required under the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution and delivery of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account (including the Principal Collection Account and Interest Collection Account sub-accounts thereunder) has been established pursuant to the Collection Account Agreement;
(xii) The URCA Account has been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)request.
(b) By its execution and delivery of this Agreement, each of the Borrower and the Servicer hereby certifies that each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Powertel Inc /De/)
Conditions Precedent to Effectiveness. This Joinder shall not be effective until each of the following conditions precedent have been fulfilled to the reasonable satisfaction of the Agent:
(a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the Closing Date, nor shall any Lender, the Collateral Custodian, the Backup Servicer or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions precedent, as determined in the sole discretion of, or waived in writing by, the Administrative Agent:
(i) this Agreement, each Liquidity Agreement, each Hedging Agreement, each collateral assignment agreement (including, without limitation, the assignment of the Contribution Agreement) and all other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof Joinder shall have been duly executed byand delivered by the respective parties hereto, and delivered to, the parties hereto shall be in full force and thereto effect and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as any Lender Agent shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Closing Date, each in form and substance satisfactory to the Administrative Agent;
(ii) all reasonable up-front expenses and fees (including legal fees, any fees required under the Fee Letters) that are invoiced at or prior to the Closing Date shall have been paid in full;
(iii) all other acts and conditions (including, without limitation, the obtaining of any necessary consents and regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement and all related Transaction Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have occurred in due and strict compliance with all Applicable Law;
(iv) in the reasonable judgment of the Administrative Agent, there has not been any change after the date hereof in Applicable Law which adversely affects any Lender’s or the Administrative Agent’s ability to enter into the transactions contemplated by the Transaction Documents or any Material Adverse Effect or material disruption in the financial, banking or commercial loan or capital markets generally;
(v) any and all information submitted to the Administrative Agent by the Borrower, the Transferor, the Servicer, Solar Management or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;
(vi) the Administrative Agent shall have received all documentation and other information requested by the Administrative Agent in its sole discretion or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent Agent.
(b) All action on the part of the Borrower and each Lender other party necessary for the valid execution, delivery and performance by the Borrower of this Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Agent shall have been provided to the Agent;.
(viic) no material adverse change on All due diligence items required under the businessSenior Loan Agreement and the Bridge Loan Agreement with respect to the New Property have been delivered to the Agent.
(d) The Borrower shall have delivered the following to the Agent, assets, financial conditions or performance in form and substance reasonably satisfactory to the Agent:
(i) A Certificate of Legal Existence and Good Standing issued by the Secretary of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, or any material portion State of the initial proposed Eligible Loan Assets has occurred;incorporation or organization of New Borrower.
(viiiii) the results A certificate of Administrative Agent’s legal due diligence an authorized officer relating to the Transferororganization and existence of such party, the Borrower, the Servicer, the Eligible Loan Assets and authorization of the transactions contemplated hereunder are satisfactory by the Loan Documents and this Joinder, and attesting to Administrative Agentthe true signatures of each Person authorized as a signatory to any of the Loan Documents and this Joinder, together with true and accurate copies of all organizational documents.
(iii) Execution and delivery by the New Borrower of the following Loan Documents:
a) Joinder to the Promissory Note;
b) The Security Documents required under Section 3.1 of the Senior Loan Agreement and the Bridge Loan Agreement;
c) Such other applicable documents and agreements required by the Agent.
(ixe) each applicable Lender The Agent shall have received a duly executed copy written legal opinion of its Revolving Note, in a principal amount equal the Borrower’s counsel addressed to the Commitment of Agent and the related Lender;other Lenders, covering such matters relating to the Borrower, the Loan Documents and/or the transactions contemplated thereby as the Agent shall reasonably request.
(xf) Each Liquidity Bank whose commercial paper is being rated All fees and expenses incurred by one or more Rating Agency shall have received, to the extent required under Agent in connection with the terms of such CP Lender’s program documents, the written confirmation of each such Rating Agency that the execution preparation and delivery negotiation of this Agreement will not result in a withdrawal or downgrading of the then-current rating of such commercial paper by such Rating Agency;
(xi) The Collection Account Joinder and related documents (including the Principal Collection Account reasonable fees and Interest Collection Account sub-accounts thereunder) has been established pursuant expenses of counsel to the Collection Account Agreement;
(xiiAgent) The URCA Account has shall have been established pursuant to the URCA Account Agreement; and
(xiii) the Borrower has a valid ownership interest paid in the agreed-upon initial pool of Eligible Loan Assets (as set forth in Schedule IV as of the Closing Date)full.
(bg) By its execution No Default or Event of Default shall have occurred and delivery of this Agreement, each of the be continuing.
(h) The Borrower shall have executed and the Servicer hereby certifies that each of the conditions precedent delivered to the effectiveness Agent such additional documents, instruments, and agreements as the Agent may reasonably request.
(i) The Borrower shall have paid a Bridge Loan Extension fee of this Agreement set forth in this Section 3.01 have been satisfied$65,000.00 to Lender.
Appears in 1 contract
