Conditions Precedent to the Closing Date. The obligation of each Lender to make an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions precedent in each case on or prior to December 31, 2020: (a) The Effective Date shall have occurred. (b) The Agent shall have received the following in form and substance reasonably satisfactory to the Agent: (i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 4.04(d). (ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto. (iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect). (iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor). (v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)). (vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders. (vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries. (viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below. (ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent. (c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change. (d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect. (e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent). (f) The Refinancing shall have been (or substantially concurrently shall be) consummated. (g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million. (h) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligation of each the Lender to make an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date Initial Term Loan shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions precedent in each case on or prior to December 31, 2020precedent:
(a) The Effective Date shall have occurred.this Agreement has been duly executed and delivered by the Borrower, each Guarantor and the Lender;
(b) The Agent the Closing Date shall occur on or before December 31, 2014;
(c) Lender shall have received each of the following documents, in form and substance reasonably satisfactory to the AgentLender, duly executed (to the extent applicable), and each such document shall be in full force and effect:
(i) The notes to the order Pledge Agreement, together with all certificates representing the shares of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 4.04(d).Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank;
(ii) Duly executed copies one or more Term Notes aggregating to the principal amount of the Initial Term Loan;
(iii) a certificate from the Secretary of each Credit Party (A) attesting to the U.S. Security Agreementresolutions of such Credit Party’s Board of Directors authorizing its execution, to be dated the Closing Datedelivery, and all exhibits performance of this Agreement and schedules theretothe other Loan Documents to which such Credit Party is a party, (B) authorizing specific officers of such Credit Party to execute the Canadian Security Agreementssame, and (C) attesting to be the incumbency and signatures of such specific officers of such Credit Party;
(iv) copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented to the Funding Date, certified by the Secretary of such Credit Party;
(v) a certificate of status with respect to Borrower, dated the Closing Date (provided that the deed of movable hypothec may be dated not earlier than 10 days prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, such certificate to be dated issued by the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) appropriate officer of the jurisdiction of organization of each U.S. Loan Party listing (orBorrower, as regards a Canadian Guarantor, a which certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying shall indicate that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and Borrower is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant such jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).; and
(vi) A favorable opinion of Xxxxxxxxa reporting addendum (the “Reporting Addendum”) containing the information required by Sections 5.3, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed5.5(a), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c5.5(b), 5.02(d5.6(b), 5.02(g)5.8, 5.03(a) 5.12, 5.15, 5.17 and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change7.1.
(d) There The Lender shall not have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.5, the form and substance of which shall be any action, suit, investigation or proceeding pending or, satisfactory to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.The Lender;
(e) Lead Borrower shall have paid all documented accrued fees and expenses of Lender Expenses incurred in connection with the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).transactions evidenced by this Agreement;
(f) The Refinancing Borrower and each of its Subsidiaries shall have been (received all licenses, approvals or substantially concurrently shall be) consummated.evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Document or with the consummation of the transactions contemplated thereby;
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date representations and (ii) all Letters of Credit to be issued at, or immediately subsequent to, warranties contained in this Agreement and the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries other Loan Documents shall be not less than $150.0 million.true and correct in all material respects on and as of the date of such extension of credit, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date);
(h) The Agent no Default or Event of Default shall have received a Borrowing Base Certificate dated occurred and be continuing on the Closing Datedate of such extension of credit, relating to nor shall either result from the Fiscal Month ended on October 30making thereof;
(i) no injunction, 2020writ, restraining order, or other order of any nature restricting or prohibiting, directly or indirectly, the extending of such credit shall have been issued and executed remain in force by a Responsible Officer any Governmental Authority against any Credit Party, the Lender, or any of Lead Borrowertheir Affiliates; and
(j) no Material Adverse Change shall have occurred.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlanticus Holdings Corp)
Conditions Precedent to the Closing Date. The obligation of each Lender to make an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions precedent in each case on or prior to December 31, 2020:
(a) The Effective Date shall have occurred.
(b) The Agent shall have received the following in form and substance reasonably satisfactory to the Agent:
(i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of XxxxxxxxWachtell, XxxxxxLipton, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and XxxxxxPotter, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries...
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligation of each Lender to make an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, New Money Term Loans on the Closing Date shall be is subject to the satisfaction of each of (or waiver by the Initial Lenders in writing of) the following the conditions set forth precedent, in Section 5.03 below form and substance satisfactory to Agent and the following conditions precedent in each case on or prior to December 31, 2020Initial Lenders:
(a) The Effective Date shall have occurredLoan Documents (including, but not limited to, this Agreement and the Agent Fee Letter) duly executed by Borrower and the Guarantors required to sign such Loan Document.
(b) The Agent shall have received the following in form and substance reasonably satisfactory to the Agent:
(i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 4.04(d).
(ii) Duly executed copies Customary legal opinions of (Ax) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx Bracewell LLP, in its capacity as special counsel to the Loan PartiesParties and (y) local counsel opinions covering Loan Parties and jurisdictions as reasonably agreed by the Borrower and the Initial Lenders, in each case in a form reasonably acceptable case, dated as of the Closing Date and addressed to the Agent and addressed to the Agent, the Issuing Banks and each of the Initial Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31A duly executed officer’s certificate of each Loan Party containing (i) resolutions authorizing the Loan Documents, 2019 (ii) a good standing certificate from (A) each Loan Party’s state of formation and (B) from any event state where such party is, or condition that has had or could be reasonably expectedis required to be, either individually or in the aggregate, qualified to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, do business to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely extent failure to be adversely determined, and if, adversely determined so qualified could reasonably be expected to have a Material Adverse Effect, (iii) incumbency and representative signatures and (iv) certifying as to the conditions set forth in Sections 3.1 (e), (f), (g), (k) and Sections 3.2(b), (c), and (d).
(d) The Borrower and each of the Guarantors shall have provided no less than 3 business days prior to the Closing Date the documentation and other information to the Lenders that are reasonably requested by the Lenders no later than 10 days prior to the Closing Date under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, the USA FREEDOM Act, IRS Form W-9 (if applicable) and other applicable tax forms.
(e) Lead Borrower The Petition Date shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent)occurred.
(f) The Refinancing No later than three (3) Business Days after the Petition Date, the Bankruptcy Court shall have entered the Interim DIP Order granting of the super-priority claim and the liens and other rights and protections contemplated hereby and as customary for debtor in possession financings and authorizing the Term Loans (including, for the avoidance of doubt, a roll up of the Pre-Petition Loans into the Roll-Up Loans upon the entry of the Final DIP Order), which Interim DIP Order (i) shall be in full force and effect and shall not have been, in whole or in part, vacated, reversed, stayed, or set aside and (ii) shall not have been (modified or substantially concurrently shall be) consummatedamended without the consent of the Required Lenders.
(g) After giving effect The “first day” orders (including the Cash Management Order and approval of the cash management system) entered by the Bankruptcy Court, to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters extent affecting the rights or obligations of Credit to be issued atthe Agent, the Lenders, or immediately subsequent tothe agent or the lenders under the Pre-Petition Loan Agreement, or which may give rise to a post-petition claim, administrative in nature or otherwise, shall be in form and substance reasonably acceptable to the Agent and Required Lenders. There shall exist no unstayed order and injunctions challenging this Agreement or any other Loan Documents, the Closing DatePre-Petition Loan Agreement or any Pre-Petition Loan Document, Availability plus this Agreement or any Loan Documents (as defined therein), the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 millionPre-Petition Loan Obligations, or any Liens or claims in connection therewith.
(h) The Lenders shall have received UCC, tax and judgment lien searches and other appropriate evidence in form and substance reasonably satisfactory to the Required Lenders evidencing the absence of any other liens or mortgages on the Collateral, except the liens securing the Pre-Petition Loan Documents, Permitted Liens, and other existing liens acceptable to the Required Lenders.
(i) The Lenders shall have received an Initial Approved Budget.
(j) The Loan Parties shall have filed the Acceptable Disclosure Statement and the Acceptable Plan of Reorganization with the Bankruptcy Court.
(k) Since the Petition Date there has not been any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate a Material Adverse Effect. For purposes of determining compliance with the conditions specified in this Section 3.1, each Initial Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating notice from such Lender prior to the Fiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrowerproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligation occurrence of each Lender to make an Advance (including a Swing Line Advance), the Closing Date and the obligation of each Issuing Bank the Lenders to Issue each Letter of Credit, in each case, on make the Closing Date Term Loans hereunder shall be subject to the prior satisfaction by Borrower of each of the following conditions set forth in Section 5.03 below to the satisfaction of Administrative Agent, the Lenders and the following conditions precedent Hedge Counterparties (unless waived in each case on or prior to December 31, 2020:writing by Administrative Agent with the consent of all Lenders):
(a) The Effective Date If a Lender shall request, such Lender shall have occurredreceived a Term Loan Note.
(b) The Agent Borrower shall have received delivered the following Notice of Term Loan Borrowing in form and substance reasonably satisfactory to the Agent:
(i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to accordance with Section 4.04(d2.1(a)(ii).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There All representations and warranties of the Borrower under Article 4 are true and correct in all material respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or been true and correct in the aggregate, to have a Material Adverse Changeall material respects as of such earlier date).
(d) There shall not be any action, suit, investigation No Default or proceeding pending or, to the knowledge Event of Default has occurred and is continuing as of the Loan Parties, threatened in any court date of such Borrowing or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effectwill result from the funding of the Term Loans.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of No event or circumstance having a Material Adverse Effect has occurred (except as is no longer continuing or has been waived by the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the AgentMajority Lenders).
(f) The Refinancing Each Financing Document, Material Project Document and Applicable Permit shall be in full force and effect in accordance with its terms and no material defaults shall have been occurred thereunder, to the knowledge of Borrower (solely with respect to any act, omission or substantially concurrently shall be) consummated.
other default of any party thereto other than Borrower). (g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Administrative Agent shall have received a Borrowing Base Certificate certificate, dated as of the Closing Date, relating to the Fiscal Month ended signed on October 30, 2020, and executed behalf of Borrower by a Responsible Officer thereof, in substantially the form of Lead BorrowerExhibit G-6.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligation of each Lender to make an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions precedent in each case on or prior to December 31, 2020:
(a) The Effective Date shall have occurred.
(b) The Agent shall have received the following in form and substance reasonably satisfactory to the Agent:
(i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries...
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligation of each Committed Lender to make an Advance (including a Swing Line Advance), Loans and the obligation effectiveness of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be this Agreement are subject to the prior satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions precedent conditions, in each case to the satisfaction of the Administrative Agent, each Group Agent and each of the Lenders (unless waived pursuant to Section 9.14(a)) on or prior to December 31, 2020the Closing Date:
(a) The Effective Date shall have occurredDelivery to the Agents of each of the following Financing Documents, each duly executed and delivered by the parties thereto:
(i) this Agreement;
(ii) the CADA;
(iii) the Member Pledge;
(iv) the Security Agreement;
(v) the Fee Letters;
(vi) the Notes (if requested by a Lender); and
(vii) the LLC Agreements (amended and restated to comply with the provisions of this Agreement, as necessary).
(b) Each representation and warranty of the Borrower and each other Loan Party contained in Article 4 or any other Financing Document is true and correct in all material respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date). With respect to each Subject Fund designated as such as of the Closing Date, the Tax Equity Representations are true and correct in all material respects as of the Closing Date, other than those Tax Equity Representations that are modified by Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. materiality by their own terms, which shall be true and correct in all respects as of the Closing Date (unless such Tax Equity Representation relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).
(c) As of the Closing Date, no event shall have occurred and be continuing or would result from the consummation of the transactions contemplated by this Agreement or the other Financing Documents on the Closing Date that would constitute a Default or an Event of Default under this Agreement or would result from the Borrowing of the Loan or from the application of the proceeds therefrom.
(d) Delivery to the Administrative Agent and each Group Agent of the following:
(i) a secretary’s certificate, satisfactory in form and substance to the Administrative Agent, from each Loan Party and the Limited Guarantor, signed by each of its respective authorized Responsible Officers and dated as of the Closing Date, attaching and certifying as to the Organizational Documents of each such party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), and attaching and certifying as to the resolutions of the governing body of each such Person, the good standing, existence or its equivalent of each such party and of the incumbency of the Responsible Officers of each such Person;
(ii) a certificate from a Responsible Officer of each Loan Party certifying to (A) the representations and warranties made by such Loan Party (and in the case of the Borrower, for each Borrower Subsidiary Party) in each Financing Document to which it is a party being true and correct in all material respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), (B) the absence of a Default or an Event of Default, (C) the absence of any material breach by any Funded Subsidiary (unless identified as a Watched Fund) of any Project Documents to which it is a party, (D) the absence of a Bankruptcy Event with respect to each of SolarCity, each Loan Party and each Funded Subsidiary (unless identified as a Watched Fund), and (E) the satisfaction (or waiver by the Administrative Agent and each Lender) of all conditions precedent to the Closing Date in accordance with the terms and conditions hereof;
(iii) an opinion, dated as of the Closing Date, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, in form and substance reasonably acceptable to the Agents and each Group Agent; and
(iv) an opinion, dated as of the Closing Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity in form and substance reasonably acceptable to the Agents and each Group Agent. Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(e) All Liens contemplated by the Collateral Documents to be created and perfected in favor of the Collateral Agent as of the Closing Date shall have been perfected, recorded and filed in the appropriate jurisdictions.
(f) The Administrative Agent and the Collateral Agent shall have received (A) searches of UCC filings in the following jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, (B) copies of the financing statements on file in such jurisdictions and evidence that no Liens exist on the Collateral other than Permitted Liens of the type set forth in clauses (b), (c) or (d) of the definition thereof and (C) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(g) The UCC financing statements relating to the Collateral being secured as of the Closing Date shall have been duly filed in each office and in each jurisdiction where required in order to create and perfect the first Lien and security interest set forth in the Collateral Documents. Each Loan Party shall have properly delivered or caused to be delivered to the Collateral Agent all Collateral that requires perfection of the Lien and security interest described above by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in the Borrower and in each Managing Member along with blank transfer powers and proxies.
(h) All amounts required to be paid to or deposited with the Administrative Agent, the Collateral Agent, the Depositary, any Group Agent or any Lender under this Agreement or any other Financing Document, or under any separate agreement with such parties, and all taxes, fees and other costs payable in connection with the execution, delivery and filing of the documents and instruments required to be filed pursuant to this Section 3.1, shall have been paid in full (or in connection with such taxes, fees (other than fees payable to the Lenders or the Agents) and costs, the Borrower shall have made other arrangements acceptable to the Agents, the Depositary, the Group Agent or such Lender(s), as the case may be, in their sole discretion).
(i) The Agents and Group Agents shall have received all such documentation and information requested by the Agents and the Group Agents that is necessary (including the names and addresses of the Borrower, taxpayer identification forms, name of officers/board members, documents and copies of government-issued identification of the Borrower, the Member or owners thereof) for the Agents, the Group Agents and each Lender to identify the Borrower, the Member or owners thereof in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder).
(j) All Accounts required to be open as of the Closing Date under the CADA shall have been opened.
(k) The expenses incurred and invoiced as of or prior to the Closing Date shall have been paid by the Borrower or its Affiliates in accordance with Section 10.4.
(l) The Borrower shall have delivered the most recently available unaudited financial statements of the Borrower, each Borrower Subsidiary Party, each Subject Fund and the Limited Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. Guarantor (with respect to the Limited Guarantor only, to the extent not otherwise publicly available) in form and substance satisfactory to the Administrative Agent in its sole discretion.
(m) The Borrower shall have obtained all material approvals (to the extent required to have been obtained by such time) and all material consents of any Persons or modifications to Project Documents or Organizational Documents of any putative Subject Fund (including any Tax Equity Required Consent, except the [***] Tax Equity Required Consent), in each case that are necessary for its entry into the Financing Documents to which it is a party and implementation of the transactions contemplated in the Financing Documents, each of which is listed on Schedule 3.1(m). Each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent:
(i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 4.04(d).
(iin) Duly executed copies of (A) The Administrative Agent shall have received the U.S. Security Agreement, Tax Equity Model for each Subject Fund intended to be dated included in the Closing Available Borrowing Base on the first Borrowing Date.
(o) The Administrative Agent shall have received the most recently available fleet report of SolarCity, and all exhibits and schedules theretoprepared by an Independent Engineer, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to the Administrative Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Conditions Precedent to the Closing Date. The obligation of each Lender to make an Advance (including a Swing Line Advance), Loans and the obligation effectiveness of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be this Agreement are subject to the prior satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions precedent conditions, in each case to the satisfaction of the Administrative Agent and each of the Lenders (unless waived pursuant to Section 9.12(a)) on or prior to December 31, 2020the Closing Date:
(a) The Effective Date shall have occurredDelivery to the Agents of each of the following Financing Documents, each duly executed and delivered by the parties thereto:
(i) this Agreement;
(ii) the CADA;
(iii) the Member Pledge;
(iv) the Security Agreement;
(v) the Fee Letters;
(vi) the Tax Equity Required Consents (if any);
(vii) the LLC Agreements (amended and restated to comply with the provisions of this Agreement, as necessary); and
(viii) the Notes (if requested by a Lender).
(b) The Agent Each representation and warranty set forth in Section 4.1 is true and correct in all material respects as of the Closing Date, other than those representations and warranties which are modified by materiality by their own terms, which shall be true and correct in all respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have received been true and correct in all material respects as of such earlier date).
(c) As of the following in form Closing Date, no event shall have occurred and substance reasonably satisfactory be continuing or would result from the consummation of the transactions contemplated by this Agreement on the Closing Date that would constitute a Default or an Event of Default under this Agreement.
(d) Delivery to the AgentAdministrative Agent and each Lender of the following:
(i) The notes an omnibus secretary’s certificate, satisfactory in form and substance to the order Administrative Agent, from Borrower Member, signed by an authorized Responsible Officer and dated as of the Lenders Closing Date, attaching and certifying as to the Organizational Documents of each Loan Party (which, to the extent requested filed with a Governmental Authority, shall be certified as of a recent date by any Lender no later than three Business Days prior such Governmental Authority), and attaching and certifying as to the Closing Date pursuant to Section 4.04(d).resolutions of the governing body of each Loan Party, the good standing, existence or its equivalent of each Loan Party and of the incumbency of one or more Responsible Officers of each Loan Party; *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission
(ii) Duly an certificate executed copies by a Responsible Officer of the Borrower certifying to (A) the U.S. Security Agreement, to be dated the Closing Date, representations and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of warranties made by each Loan Party approving transactions of the type by in each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Financing Document to which it is a party being true and correct in all material respects as of the other documents Closing Date (unless such representation or warranty relates solely to be delivered hereunder an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), (B) the absence of a Default or an Event of Default, (C) the absence of any (x) material breach by any Loan Party of any Material Project Documents to which it is a party or (y) breach of any Other Documents that could have a Material Adverse Effect, (D) the absence of any Bankruptcy Event with respect to any Loan Party and any Subject Fund in which such Loan Party owns an interest, and (E) the satisfaction (or certifying no change waiver by the Administrative Agent and each Lender) of all conditions precedent to the certificate delivered on Closing Date in accordance with the Effective Date pursuant to Section 5.01(a)(v)).terms and conditions hereof;
(viiii) A favorable opinion a certificate executed by a Responsible Officer of Xxxxxxxxthe Borrower certifying to (A) the absence of a Default or an Event of Default with respect to Borrower Member or Vivint Solar Parent, Xxxxxx(B) the absence of any Bankruptcy Event with respect to Borrower Member or Vivint Solar Parent;
(iv) an opinion, Xxxxx dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form and substance reasonably acceptable to the Agent Agents and addressed each Lender; and
(v) an opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special bankruptcy counsel to the AgentLoan Parties, in form and substance reasonably acceptable to the Issuing Banks Agents and each of the LendersLender.
(viie) Except The Collateral Documents shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the extent Equity Interests of the Borrower, the Equity Interests of each Managing Member and each Equity Interest owned by any Managing Member in another Person accompanied, in each case, by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably agrees that such conditions may be satisfied within necessary to perfect, record and file in the appropriate jurisdictions.
(f) The Administrative Agent and the Collateral Agent shall have received (A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a post-closing period filing would need to be set forth on Schedule 7.01(p) (which may be supplemented on made in order to perfect the Closing Date with the approval security interest of the Agent, not to be unreasonably withheld, conditioned or delayed), Collateral Agent (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties) in the Collateral, securing (B) copies of the Obligations shall have been duly executed, and/or made; (2) all filing financing statements on file in such jurisdictions and recording fees and taxes shall have been duly paid evidence that no Liens exist other than Permitted Liens and (3C) the Agent shall be satisfied with the amountcopies of tax lien, types judgment and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth bankruptcy searches in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummatedsuch jurisdictions.
(g) After giving effect The UCC financing statements relating to (i) any Revolving Credit Advance funded on the Collateral being secured as of the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a Borrowing Base Certificate dated been duly filed in each office and in each jurisdiction where required in order to create and perfect the Closing Date, relating to first Lien and security interest set forth in the Fiscal Month ended on October 30, 2020, Collateral *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and executed by a Responsible Officer of Lead Borrower.filed separately with the Commission
Appears in 1 contract
Samples: Loan Agreement (Vivint Solar, Inc.)
Conditions Precedent to the Closing Date. The obligation of each Committed Lender to make an Advance (including a Swing Line Advance), Loans and the obligation effectiveness of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be this Agreement are subject to the prior satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions precedent conditions, in each case to the satisfaction of the Administrative Agent, each Group Agent and each of the Lenders (unless waived pursuant to Section 9.14(a)) on or prior to December 31, 2020the Closing Date:
(a) The Effective Date shall have occurredDelivery to the Agents of each of the following Financing Documents, each duly executed and delivered by the parties thereto:
(i) this Agreement;
(ii) the CADA;
(iii) the Member Pledge;
(iv) the Security Agreement;
(v) the Fee Letters;
(vi) the Notes (if requested by a Lender); and
(vii) the LLC Agreements (amended and restated to comply with the provisions of this Agreement, as necessary).
(b) Each representation and warranty of the Borrower and each other Loan Party contained in Article 4 or any other Financing Document is true and correct in all material respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date). With respect to each Subject Fund designated as such as of the Closing Date, the Tax Equity Representations are true and correct in all material respects as of the Closing Date, other than those Tax Equity Representations that are modified by materiality by their own terms, which shall be true and correct in all respects as of the Closing Date (unless such Tax Equity Representation relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date). Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(c) As of the Closing Date, no event shall have occurred and be continuing or would result from the consummation of the transactions contemplated by this Agreement or the other Financing Documents on the Closing Date that would constitute a Default or an Event of Default under this Agreement or would result from the Borrowing of the Loan or from the application of the proceeds therefrom.
(d) Delivery to the Administrative Agent and each Group Agent of the following:
(i) a secretary’s certificate, satisfactory in form and substance to the Administrative Agent, from each Loan Party and the Limited Guarantor, signed by each of its respective authorized Responsible Officers and dated as of the Closing Date, attaching and certifying as to the Organizational Documents of each such party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), and attaching and certifying as to the resolutions of the governing body of each such Person, the good standing, existence or its equivalent of each such party and of the incumbency of the Responsible Officers of each such Person;
(ii) a certificate from a Responsible Officer of each Loan Party certifying to (A) the representations and warranties made by such Loan Party (and in the case of the Borrower, for each Borrower Subsidiary Party) in each Financing Document to which it is a party being true and correct in all material respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), (B) the absence of a Default or an Event of Default, (C) the absence of any material breach by any Funded Subsidiary (unless identified as a Watched Fund) of any Project Documents to which it is a party, (D) the absence of a Bankruptcy Event with respect to each of SolarCity, each Loan Party and each Funded Subsidiary (unless identified as a Watched Fund), and (E) the satisfaction (or waiver by the Administrative Agent and each Lender) of all conditions precedent to the Closing Date in accordance with the terms and conditions hereof;
(iii) an opinion, dated as of the Closing Date, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, in form and substance reasonably acceptable to the Agents and each Group Agent; and
(iv) an opinion, dated as of the Closing Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity in form and substance reasonably acceptable to the Agents and each Group Agent.
(e) All Liens contemplated by the Collateral Documents to be created and perfected in favor of the Collateral Agent as of the Closing Date shall have been perfected, recorded and filed in the appropriate jurisdictions. 66 Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(f) The Administrative Agent and the Collateral Agent shall have received (A) searches of UCC filings in the following jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, (B) copies of the financing statements on file in such jurisdictions and evidence that no Liens exist on the Collateral other than Permitted Liens of the type set forth in clauses (b), (c) or (d) of the definition thereof and (C) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(g) The UCC financing statements relating to the Collateral being secured as of the Closing Date shall have been duly filed in each office and in each jurisdiction where required in order to create and perfect the first Lien and security interest set forth in the Collateral Documents. Each Loan Party shall have properly delivered or caused to be delivered to the Collateral Agent all Collateral that requires perfection of the Lien and security interest described above by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in the Borrower and in each Managing Member along with blank transfer powers and proxies.
(h) All amounts required to be paid to or deposited with the Administrative Agent, the Collateral Agent, the Depositary, any Group Agent or any Lender under this Agreement or any other Financing Document, or under any separate agreement with such parties, and all taxes, fees and other costs payable in connection with the execution, delivery and filing of the documents and instruments required to be filed pursuant to this Section 3.1, shall have been paid in full (or in connection with such taxes, fees (other than fees payable to the Lenders or the Agents) and costs, the Borrower shall have made other arrangements acceptable to the Agents, the Depositary, the Group Agent or such Lender(s), as the case may be, in their sole discretion).
(i) The Agents and Group Agents shall have received all such documentation and information requested by the Agents and the Group Agents that is necessary (including the names and addresses of the Borrower, taxpayer identification forms, name of officers/board members, documents and copies of government-issued identification of the Borrower, the Member or owners thereof) for the Agents, the Group Agents and each Lender to identify the Borrower, the Member or owners thereof in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder).
(j) All Accounts required to be open as of the Closing Date under the CADA shall have been opened.
(k) The expenses incurred and invoiced as of or prior to the Closing Date shall have been paid by the Borrower or its Affiliates in accordance with Section 10.4.
(l) The Borrower shall have delivered the most recently available unaudited financial statements of the Borrower, each Borrower Subsidiary Party, each Subject Fund and the Limited Guarantor (with respect to the Limited Guarantor only, to the extent not otherwise publicly available) in form and substance satisfactory to the Administrative Agent in its sole discretion. Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(m) The Borrower shall have obtained all material approvals (to the extent required to have been obtained by such time) and all material consents of any Persons or modifications to Project Documents or Organizational Documents of any putative Subject Fund (including any Tax Equity Required Consent, except the [***] Tax Equity Required Consent), in each case that are necessary for its entry into the Financing Documents to which it is a party and implementation of the transactions contemplated in the Financing Documents, each of which is listed on Schedule 3.1(m). Each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent:
(i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 4.04(d).
(iin) Duly executed copies of (A) The Administrative Agent shall have received the U.S. Security Agreement, Tax Equity Model for each Subject Fund intended to be dated included in the Closing Available Borrowing Base on the first Borrowing Date.
(o) The Administrative Agent shall have received the most recently available fleet report of SolarCity, and all exhibits and schedules theretoprepared by an Independent Engineer, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to the Administrative Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) 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) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
Appears in 1 contract
