Conditions Precedent to the Loan. The obligation of the initial Lender to advance the Loan shall be subject to fulfillment of the following conditions precedent on or prior to the Closing Date: (a) The Borrower shall have delivered to the Agent the Notice of Borrowing and the Pay Proceeds Letter; (b) The initial Lender shall have received its applicable Note duly executed by the Borrower and the initial Lender shall have received sufficient funds to make the Loan either from the issuance of commercial paper or from Credit Suisse, if requested; (c) The Agent shall have received on or before the Closing Date the following documents in form and substance satisfactory to it: (i) This Agreement duly executed by the Borrower; (ii) The Security Agreement, together with evidence of its filing (or filing of a customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada (and the favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower, and ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower, delivered pursuant to subsection (vi) below shall be conclusive evidence of such filings); (iii) Certificates of insurance naming the Secured Party as additional insured and loss payee for the benefit of the Lenders, which satisfy the requirement of Section 4.2 of the Security Agreement; (iv) A certificate of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) ARI’s articles of incorporation and bylaws, (B) the resolutions of the Board of Directors of ARI approving and authorizing (i) the execution and delivery by the Borrower of the Loan Documents to which it is a party and performance by the Borrower of the transactions contemplated hereunder and thereunder and (ii) the execution and delivery by ARI of the Loan Documents to which it is a party and performance of the transactions contemplated hereunder and thereunder, (C) the certificate of formation and operating agreement of the Borrower, and (D) an incumbency certificate regarding the Responsible Officers signing on behalf of ARI for itself and in its capacity as the sole member of the Borrower, incorporating specimen signatures; (v) A certificate of an officer of ARLLA and AR Leasing, which is the sole member of ARLLA, certifying (A) AR Leasing’s certificate of formation and operating agreement, (B) the resolutions of the Executive Committee of AR Leasing approving and authorizing (i) the execution and delivery by ARLLA of the Loan Documents to which it is a party and performance by ARLLA of the transactions contemplated thereunder and (ii) the execution and delivery by AR Leasing of the Loan Documents to which it is a party and performance by AR Leasing of the transactions contemplated thereby, (C) the certificate of formation and operating agreement of ARLLA, and (D) an incumbency certificate incorporating specimen signatures; (vi) A certificate substantially in the form of Exhibit E, of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) that no event has occurred and is continuing, or would result from the transactions contemplated by the Loan Documents, which constitutes a Default or Event of Default and (B) that all of the representation and warranties of the Borrower set forth in Section 4.1 of this Agreement are true and correct in all material respects; (vii) Favorable opinions dated the Closing Date and addressed to the Lenders of each of: (A) special counsel to the Borrower or its Affiliates (including opinions of special counsel addressing bankruptcy “true sale” or “absolute assignment” and non-consolidation matters); (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower and (C) ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower; (viii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and the Secured Party as secured party, covering the Collateral and (ii) naming ARI, as debtor and the Borrower, as secured party (and the Secured Party, as assignee secured party from the Borrower), covering the Equipment and Equipment Leases transferred in accordance with the Contribution and Sale Agreement, in each case to be filed and recorded with the office of the Secretary of State of the State of Delaware on behalf of the Secured Party; (ix) A duly executed letter from the Borrower to the Collateral Agent authorizing the Collateral Agent to attach the legend described in Section 5.2 of the Security Agreement to each Equipment Lease; (x) A copy of the Appraisal that is to be the basis of the determination of the Fair Market Value of the Equipment as of the Closing Date; (xi) Either (A) copies of recent good standing certificates of each of the Borrower and ARI and AR Leasing, certified by the Delaware Secretary of the State (in the case of the Borrower and AR Leasing) and the North Dakota Secretary of State (in the case of ARI), or (B) originals of such good standing certificates certified by the respective states of formation or incorporation, as the case may be, all as reasonably acceptable to the Agent; (xii) Certified copies of (i) the Management Agreement, (ii) the Collateral Agency Agreement, (iii) the Contribution and Sale Agreement, and (iv) the Lease Administration Agreement; (xiii) Evidence of the execution and delivery by the Borrower and AR Leasing, as “Manager” under the Lease Administration Agreement, of documents required under Section 17 of the Lease Administration Agreement in respect of the joinder of the Borrower as a new Tranche II Owner and the identification of the Agent as representative of the Lenders and of AR Leasing as an additional Applicable Manager, including (A) a joinder signature page of the Borrower and (B) a Tranche II Owner Notice in the form of Exhibit B to Lease Administration Agreement, including (i) Annex 1: List of additional Tranche II Owner Cars of the Borrower as additional Tranche II Owner (supplementing Exhibit A to the Lease Administration Agreement) and (ii) Annex 2 (supplementing Exhibit O to the Lease Administration Agreement), it being understood that in executing this Agreement, the Agent, the Borrower and initial Lender agree that AR Leasing shall not be required to deliver (1) a notice to the “Users” in the form of Exhibit B to the Lease Administration Agreement, (2) a notice to each relevant railroad or (3) a notice to the Official Railway Equipment Registry concerning the new Tranche II Owner Cars, as set forth in Section 3.3 of the Lease Administration Agreement; (xiv) Evidence of the deliveries required under Section 9(d) of the Collateral Agency Agreement, including (A) a joinder signature page of the Borrower thereto as a new “Pledgor” thereunder and (B) a Notice of Additional Party to Collateral Agency Agreement executed by the Borrower and AR Leasing in form of Exhibit A to the Collateral Agency Agreement, including (i) Schedule 1: additional Collateral Documents (if applicable) and (ii) Schedule 2: Notice Addresses; (xv) A security interest perfection certificate of the Borrower, duly executed by an officer of the Borrower; (xvi) A security interest perfection certificate of ARI, duly executed by an officer of ARI; (xvii) A copy of the Securities Account Control Agreement executed by each party thereto; and (xviii) the side letter referred to in Section 2.15 executed by the Borrower and the Agent. (d) The Borrower shall have made arrangements reasonably satisfactory to the Agent to pay for all filing fees and expenses incurred in connection with the filing of the Security Agreement (or customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada, and the UCC-1 Financing Statements (as described above in Section 3.1(c)(vii)) with the Secretary of the State of the State of Delaware. (e) The Borrower shall have (i) delivered or made arrangements to deliver the original Equipment Leases to the Collateral Agent in accordance with Section 5.2 of the Security Agreement and (ii) authorized the Collateral Agent to legend such original Equipment Leases in the manner described in Section 5.2 of the Security Agreement. (f) The Agent shall have received evidence satisfactory to it that the Equipment and Equipment Leases to be conveyed to the Borrower on the Closing Date constitute part of the Intended Securitization Portfolio.
Appears in 1 contract
Sources: Term Loan Agreement (American Railcar Industries, Inc.)
Conditions Precedent to the Loan. The obligation of the initial Lender to advance make the Loan shall be to the Company is subject to fulfillment of the following conditions precedent on or prior to condition that the Closing DateLender shall have received the following:
(a) The Borrower shall have delivered to this Agreement executed by the Agent the Notice of Borrowing and the Pay Proceeds LetterCompany;
(b) The initial Lender shall have received its applicable the Note duly executed by the Borrower Company and payable to the initial order of the Lender shall have received sufficient funds to make the Loan either from the issuance of commercial paper or from Credit Suisse, if requested;
(c) The Agent shall have received on the Security Documents executed by the Company;
(d) the Guaranty Agreement executed by FirstCity Financial Corporation;
(e) a certificate of an officer and of the secretary or before an assistant secretary of the Closing Date the following documents in form and substance satisfactory to it:
Company certifying, inter alia, (i) This Agreement duly executed by true and complete copies of each of the Borrower;
(ii) The Security Agreementarticles or certificate of incorporation, together with evidence as amended and in effect of its filing (or filing of a customary memorandum thereof) with the United States Surface Transportation Board Company and the Office Guarantor, the bylaws, as amended and in effect, of the Registrar General of Canada (Company and the favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower, Guarantor and ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower, delivered pursuant to subsection (vi) below shall be conclusive evidence of such filings);
(iii) Certificates of insurance naming the Secured Party as additional insured and loss payee for the benefit of the Lenders, which satisfy the requirement of Section 4.2 of the Security Agreement;
(iv) A certificate of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) ARI’s articles of incorporation and bylaws, (B) the resolutions of adopted by the Board of Directors of ARI approving the Company and the Guarantor (A) authorizing (i) the execution execution, delivery and delivery performance by the Borrower Company of this Agreement and the other Loan Documents to which it is or will be a party, (B) approving the forms of the Loan Documents to which it is or will be a party and performance by which will be delivered at or prior to the Borrower Closing Date and (C) authorizing officers of the transactions contemplated hereunder Company to execute and thereunder and (ii) the execution and delivery by ARI of deliver the Loan Documents to which it is or will be a party and performance of the transactions contemplated hereunder and thereunderany related documents, (C) the certificate of formation and operating including, any agreement of the Borrower, and (D) an incumbency certificate regarding the Responsible Officers signing on behalf of ARI for itself and in its capacity as the sole member of the Borrower, incorporating specimen signatures;
(v) A certificate of an officer of ARLLA and AR Leasing, which is the sole member of ARLLA, certifying (A) AR Leasing’s certificate of formation and operating agreement, (B) the resolutions of the Executive Committee of AR Leasing approving and authorizing (i) the execution and delivery by ARLLA of the Loan Documents to which it is a party and performance by ARLLA of the transactions contemplated thereunder and (ii) the execution and delivery by AR Leasing of the Loan Documents to which it is a party and performance by AR Leasing of the transactions contemplated thereby, (C) the certificate of formation and operating agreement of ARLLA, and (D) an incumbency certificate incorporating specimen signatures;
(vi) A certificate substantially in the form of Exhibit E, of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) that no event has occurred and is continuing, or would result from the transactions contemplated by the Loan Documents, which constitutes a Default or Event of Default and (B) that all of the representation and warranties of the Borrower set forth in Section 4.1 of this Agreement are true and correct in all material respects;
(vii) Favorable opinions dated the Closing Date and addressed to the Lenders of each of: (A) special counsel to the Borrower or its Affiliates (including opinions of special counsel addressing bankruptcy “true sale” or “absolute assignment” and non-consolidation matters); (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower and (C) ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower;
(viii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and the Secured Party as secured party, covering the Collateral and (ii) naming ARI, as debtor and the Borrower, as secured party (and the Secured Party, as assignee secured party from the Borrower), covering the Equipment and Equipment Leases transferred in accordance with the Contribution and Sale Agreement, in each case to be filed and recorded with the office of the Secretary of State of the State of Delaware on behalf of the Secured Party;
(ix) A duly executed letter from the Borrower to the Collateral Agent authorizing the Collateral Agent to attach the legend described in Section 5.2 of the Security Agreement to each Equipment Lease;
(x) A copy of the Appraisal that is to be the basis of the determination of the Fair Market Value of the Equipment as of the Closing Date;
(xi) Either (A) copies of recent good standing certificates of each of the Borrower and ARI and AR Leasing, certified by the Delaware Secretary of the State (in the case of the Borrower and AR Leasing) and the North Dakota Secretary of State (in the case of ARI), or (B) originals of such good standing certificates certified by the respective states of formation or incorporation, as the case may be, all as reasonably acceptable to the Agent;
(xii) Certified copies of (i) the Management Agreement, (ii) the Collateral Agency Agreement, incumbency and specimen signatures of the officers of the Company and the Guarantor executing any documents on its behalf and (iii) that there has been no change in the Contribution and Sale Agreement, and (iv) businesses or financial condition of the Lease Administration AgreementCompany or the Guarantor which could have a Material Adverse Effect;
(xiiif) Evidence of the execution and delivery by the Borrower and AR Leasingfavorable, as “Manager” under the Lease Administration Agreement, of documents required under Section 17 of the Lease Administration Agreement in respect of the joinder of the Borrower as a new Tranche II Owner and the identification of the Agent as representative of the Lenders and of AR Leasing as an additional Applicable Manager, including (A) a joinder signature page of the Borrower and (B) a Tranche II Owner Notice in the form of Exhibit B to Lease Administration Agreement, including (i) Annex 1: List of additional Tranche II Owner Cars of the Borrower as additional Tranche II Owner (supplementing Exhibit A signed opinions addressed to the Lease Administration Agreement) and (ii) Annex 2 (supplementing Exhibit O Lender from counsel to the Lease Administration Agreement)Company, it being understood that in executing this Agreement, the Agent, the Borrower form and initial Lender agree that AR Leasing shall not be required to deliver (1) a notice substance satisfactory to the “Users” in the form of Exhibit B to the Lease Administration Agreement, (2) a notice to each relevant railroad or (3) a notice to the Official Railway Equipment Registry concerning the new Tranche II Owner Cars, as set forth in Section 3.3 of the Lease Administration AgreementLender and its counsel;
(xivg) Evidence of the deliveries required under Section 9(d) of the Collateral Agency Agreement, including (A) a joinder signature page of the Borrower thereto as a new “Pledgor” thereunder and (B) a Notice of Additional Party to Collateral Agency Agreement executed by the Borrower and AR Leasing in form of Exhibit A payment to the Collateral Agency Agreement, including (i) Schedule 1: additional Collateral Documents (if applicable) Lender of all reasonable fees and (ii) Schedule 2: Notice Addresses;
(xv) A security interest perfection certificate of expenses agreed upon by such parties to be paid on the Borrower, duly executed by an officer of the Borrower;
(xvi) A security interest perfection certificate of ARI, duly executed by an officer of ARI;
(xvii) A copy of the Securities Account Control Agreement executed by each party theretoClosing Date; and
(xviiih) certificates of appropriate public officials as to the side letter referred existence, good standing and qualification to do business as a foreign corporation, as applicable, of the Company and the Guarantor in Section 2.15 executed each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualifications and where the failure to so qualify would have a Material Adverse Effect. The acceptance of the benefits of the Loan shall constitute a representation and warranty by the Borrower and Company to the Agent.
(d) The Borrower Lender that all of the conditions specified in this Section above shall have made arrangements reasonably satisfactory to the Agent to pay for all filing fees and expenses incurred in connection with the filing been satisfied or waived as of the Security Agreement (or customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada, and the UCC-1 Financing Statements (as described above in Section 3.1(c)(vii)) with the Secretary of the State of the State of Delawarethat time.
(e) The Borrower shall have (i) delivered or made arrangements to deliver the original Equipment Leases to the Collateral Agent in accordance with Section 5.2 of the Security Agreement and (ii) authorized the Collateral Agent to legend such original Equipment Leases in the manner described in Section 5.2 of the Security Agreement.
(f) The Agent shall have received evidence satisfactory to it that the Equipment and Equipment Leases to be conveyed to the Borrower on the Closing Date constitute part of the Intended Securitization Portfolio.
Appears in 1 contract
Conditions Precedent to the Loan. The obligation of the initial Lender to advance the Loan shall be is subject to fulfillment satisfaction (or waiver by the Lender in its sole discretion) of each of the following conditions precedent on or prior to the Closing Date:precedent.
(a) The Borrower shall have delivered to the Agent the Notice of Borrowing and the Pay Proceeds Letter;
(b) The initial Lender or its counsel shall have received its applicable Note duly executed the following, with each Instrument dated the date of this Agreement (or as otherwise agreed by the Borrower Lender), and the initial Lender shall have received sufficient funds to make the Loan either from the issuance of commercial paper or from Credit Suisse, if requested;
(c) The Agent shall have received on or before the Closing Date the following documents in form and substance as shall be satisfactory to itthe Lender:
(i) This Agreement this Agreement, duly executed by the Borrower;
(ii) The each of the Security AgreementDocuments, each duly executed by the Borrower or other applicable Credit Party, together with evidence of its any UCC filings or other Instruments for filing (or filing of a customary memorandum registration, notarizations thereof) , notices with respect thereto or other Instruments determined by the United States Surface Transportation Board Lender to be necessary or desirable to establish and perfect the Office of the Registrar General of Canada (and the favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel Liens established pursuant to the Borrower, and ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower, delivered pursuant to subsection (vi) below shall be conclusive evidence of such filings)Security Documents;
(iii) Certificates of insurance naming the Secured Party as additional insured and loss payee for Option Agreement, duly executed by the benefit of the Lenders, which satisfy the requirement of Section 4.2 of the Security AgreementBorrower;
(iv) A certificate of a Responsible Officer of ARIthe Consent, which is the sole member of duly executed by the Borrower, certifying Mineral Ridge LLC and Scorpio Gold (AUS) ARI’s articles of incorporation and bylaws, (B) the resolutions of the Board of Directors of ARI approving and authorizing (i) the execution and delivery by the Borrower of the Loan Documents to which it is a party and performance by the Borrower of the transactions contemplated hereunder and thereunder and (ii) the execution and delivery by ARI of the Loan Documents to which it is a party and performance of the transactions contemplated hereunder and thereunder, (C) the certificate of formation and operating agreement of the Borrower, and (D) an incumbency certificate regarding the Responsible Officers signing on behalf of ARI for itself and in its capacity as the sole member of the Borrower, incorporating specimen signaturesCorporation;
(v) A certificate of an officer of ARLLA and AR Leasingto the extent not specifically referenced, which each other Loan Document, duly executed by the Borrower or the Credit Party that is the sole member of ARLLA, certifying (A) AR Leasing’s certificate of formation and operating agreement, (B) the resolutions of the Executive Committee of AR Leasing approving and authorizing (i) the execution and delivery by ARLLA of the Loan Documents to which it is a party and performance by ARLLA of the transactions contemplated thereunder and (ii) the execution and delivery by AR Leasing of the Loan Documents to which it is a party and performance by AR Leasing of the transactions contemplated thereby, (C) the certificate of formation and operating agreement of ARLLA, and (D) an incumbency certificate incorporating specimen signaturesthereto;
(vi) A certificate an Omnibus Certificate for each Credit Party, duly executed by officers thereof substantially in the form of Exhibit EA hereto, together with each Credit Party’s articles of a Responsible Officer incorporation, bylaws, resolutions, certificates of ARI, which is the sole member good standing and certification of the Borrower, certifying (A) that no event has occurred and is continuing, or would result from the transactions contemplated by the Loan Documents, which constitutes a Default or Event of Default and (B) that all of the representation and warranties of the Borrower set forth in Section 4.1 of this Agreement are true and correct in all material respectsincumbency;
(vii) Favorable certificates of issuing insurance companies or brokers, confirming compliance by the Borrower with the insurance requirements set forth in Section 7.5;
(viii) accurate and complete copies of the financial statements of the Credit Parties referred to in Section 6.1(g);
(ix) evidence satisfactory to the Lender confirming the validity of the Security Documents and their application to the Loan and the Obligations as well as the validity and perfection of the Liens granted by such Security Documents with the Agreed Priority;
(x) opinions of legal counsel for the Credit Parties, dated the Closing Date and addressed to the Lenders of each of: (A) special counsel Lender in form and substance reasonably acceptable to the Borrower or its Affiliates (including opinions of special counsel addressing bankruptcy “true sale” or “absolute assignment” and non-consolidation matters)Lender; (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower and (C) ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower;and
(viiixi) A copy of all such other approvals, opinions, documents or Instruments as the UCC-1 Financing Statements Lender may reasonably request.
(ib) naming Borrower as debtor all representations and warranties made by the Secured Party as secured party, covering the Collateral and (ii) naming ARI, as debtor and the Borrower, as secured party (and the Secured Party, as assignee secured party from the Borrower), covering the Equipment and Equipment Leases transferred in accordance with the Contribution and Sale AgreementCredit Parties herein, in each case to any other Loan Documents shall be filed true and recorded with the office of the Secretary of State of the State of Delaware correct on behalf of the Secured Party;
(ix) A duly executed letter from the Borrower to the Collateral Agent authorizing the Collateral Agent to attach the legend described in Section 5.2 of the Security Agreement to each Equipment Lease;
(x) A copy of the Appraisal that is to be the basis of the determination of the Fair Market Value of the Equipment as of the Closing Date;
(xic) Either (A) copies of recent good standing certificates of each the Borrower shall have paid the Structuring Fee and all other applicable costs, fees and expenses on and as of the Borrower and ARI and AR Leasing, certified by the Delaware Secretary date of the State (in the case of the Borrower and AR Leasing) and the North Dakota Secretary of State (in the case of ARI), or (B) originals of such good standing certificates certified by the respective states of formation or incorporation, as the case may be, all as reasonably acceptable to the Agentthis Agreement;
(xiid) Certified no Default or Event of Default has occurred and is continuing or would occur as a result of the making of the Loan or the use of the proceeds thereof;
(e) all approvals, consents and authorizations of Governmental Authorities, the shareholders of Borrower or other Persons required in connection with this Agreement and the other Loan Documents shall have been obtained and remain in effect;
(f) there is no pending or threatened action or proceeding before any Governmental Authority against or affecting any Credit Party or any Mineral Properties, which could reasonably be expected to have a Material Adverse Effect on any Credit Party;
(g) since December 31, 2010, the date of the Borrower’s most recent audited financial statements, a copy of which is attached in Schedule 6.1(g) attached hereto, there shall have been no change, event or occurrence that has had, or could reasonably be expected to have, a Material Adverse Effect on any Credit Party;
(h) all data, reports, maps, surveys, financial statements, Instruments and other information requested by the Lender for its due diligence, including searches of all Lien filings, registrations and records deemed necessary by the Lender, and copies of any documents, filings and Instruments on file in such jurisdictions, shall have been provided, and the Lender shall have completed its technical, legal, financial, permitting, environmental and other due diligence investigation of the Credit Parties and the Mineral Properties in scope, and with results, satisfactory to the Lender;
(i) the Management Agreement, (ii) the Collateral Agency Agreement, (iii) the Contribution and Sale Agreement, and (iv) the Lease Administration Agreement;
(xiii) Evidence of the execution and delivery by the Borrower and AR Leasing, as “Manager” under the Lease Administration Agreement, of documents required under Section 17 of the Lease Administration Agreement in respect of the joinder of the Borrower as a new Tranche II Owner and the identification of the Agent as representative of the Lenders and of AR Leasing as an additional Applicable Manager, including (A) a joinder signature page of the Borrower and (B) a Tranche II Owner Notice in Lender shall be satisfied with the form of Exhibit B to Lease Administration Agreement, including (i) Annex 1: List of additional Tranche II Owner Cars of the Borrower as additional Tranche II Owner (supplementing Exhibit A to the Lease Administration Agreement) and (ii) Annex 2 (supplementing Exhibit O to the Lease Administration Agreement), it being understood that in executing this Agreement, the Agent, the Borrower and initial Lender agree that AR Leasing shall not be required to deliver (1) a notice to the “Users” in the form of Exhibit B to the Lease Administration Agreement, (2) a notice to each relevant railroad or (3) a notice to the Official Railway Equipment Registry concerning the new Tranche II Owner Cars, as set forth in Section 3.3 of the Lease Administration Agreement;
(xiv) Evidence of the deliveries required under Section 9(d) of the Collateral Agency Agreement, including (A) a joinder signature page of the Borrower thereto as a new “Pledgor” thereunder and (B) a Notice of Additional Party to Collateral Agency Agreement executed by the Borrower and AR Leasing in form of Exhibit A to the Collateral Agency Agreement, including (i) Schedule 1: additional Collateral Documents (if applicable) and (ii) Schedule 2: Notice Addresses;
(xv) A security interest perfection certificate of the Borrower, duly executed by an officer of the Borrower;
(xvi) A security interest perfection certificate of ARI, duly executed by an officer of ARI;
(xvii) A copy of the Securities Account Control Agreement executed by each party theretoLoan Documents; and
(xviiij) each Credit Party has performed and complied with all agreements and conditions herein and in the side letter referred other Loan Documents required to in Section 2.15 executed be performed and complied with on or prior to the date of the proposed Loan, except those agreements and conditions waived by the Lender. The Borrower’s request for a Loan shall be deemed to constitute a representation and warranty by the Borrower and the Agent.
(d) The Borrower shall have made arrangements reasonably satisfactory to the Agent to pay for all filing fees and expenses incurred in connection with the filing as of the Security Agreement date of such Loan that the applicable conditions in paragraphs (or customary memorandum thereofa) with the United States Surface Transportation Board and the Office through (j) of the Registrar General of Canadathis Section have been, and the UCC-1 Financing Statements (as described above in Section 3.1(c)(vii)) with the Secretary of the State of the State of Delawareremain, satisfied.
(e) The Borrower shall have (i) delivered or made arrangements to deliver the original Equipment Leases to the Collateral Agent in accordance with Section 5.2 of the Security Agreement and (ii) authorized the Collateral Agent to legend such original Equipment Leases in the manner described in Section 5.2 of the Security Agreement.
(f) The Agent shall have received evidence satisfactory to it that the Equipment and Equipment Leases to be conveyed to the Borrower on the Closing Date constitute part of the Intended Securitization Portfolio.
Appears in 1 contract
Sources: Bridge Loan Agreement (Golden Phoenix Minerals Inc)
Conditions Precedent to the Loan. The obligation of the initial Lender Group (or any member thereof) to advance make the Loan shall be Loan, is subject to fulfillment the fulfillment, to the satisfaction of Agent, of each of the following conditions precedent on or prior to the Closing Dateset forth below:
(a) The Borrower Agent shall have delivered received the commitment fee payable pursuant to the Agent the Notice of Borrowing and the Pay Proceeds LetterSection 2.9;
(b) The initial Lender Agent shall have received its applicable Note each of the following documents, duly executed by executed, and each such document shall then be in full force and effect:
(i) this Agreement,
(ii) the Borrower and Guarantor Security Agreement,
(iii) the initial Lender shall have received sufficient funds to make Guaranty,
(iv) the Loan either from Intercompany Subordination Agreement,
(v) the issuance of commercial paper or from Credit SuisseIntercreditor Agreement, if requestedand
(vi) the Pledge Agreement;
(c) The Agent shall have received on a certificate from the Secretary of Borrower attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute the same;
(d) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified, or before supplemented to the Closing Date Date, certified by the following documents Secretary of Borrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower’s Governing Documents since the Closing Date;
(e) Agent shall have received a certificate of status with respect to Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(g) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(h) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower’s Governing Documents since last delivered to Agent and certified by the Secretary of such Guarantor;
(i) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(j) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received an opinion of Obligors’ counsel and Obligor’s FCC counsel in form and substance satisfactory to it:
(i) This Agreement duly executed by the BorrowerAgent;
(iil) The Security AgreementAgent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower, together with evidence of its filing Subsidiaries, or their properties, assets, income, and franchises (or filing including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada (and the favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower, and ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower, delivered pursuant to subsection (vi) below shall be conclusive evidence of such filings)Permitted Protest;
(iiim) Certificates Borrower shall have Senior Loan Availability, after giving effect to the funding of insurance naming the Secured Party as additional insured Loans and loss payee the repayment of the Senior Loans with the proceeds thereof, of not less than $20,000,000;
(n) Agent shall have received a certificate from the chief financial officer of Borrower with a copy of the Projections most recently delivered to the Lenders prior to the Closing Date attached thereto and certifying that such Projections are still in effect and continue to represent Borrower’s good faith best estimate of the Obligors’ future performance for the benefit of periods covered thereby;
(o) Borrower shall have paid all Lender Group Expenses incurred in connection with the Lenders, which satisfy the requirement of Section 4.2 of the Security transactions evidenced by this Agreement;
(ivp) A The Lenders shall have received an updated appraisal of the OLV Value of the Stations, the results of which shall be satisfactory to the Lenders;
(q) [Intentionally omitted];
(r) Agent shall have received executed copies of each of the Senior Loan Documents, each of which shall be in form and substance satisfactory to the Required Lenders, together with a certificate of the Secretary of Borrower certifying each such document as being a Responsible Officer of ARItrue, which is the sole member correct, and complete copy thereof;
(s) Agent shall have received satisfactory evidence that all of the Borrower, certifying (A) ARI’s articles of incorporation and bylaws, (B) conditions precedent to the resolutions effectiveness of the Board Senior Loan Documents have been (or concurrently are being) satisfied or waived by the Senior Loan Agent and that the Senior Loan Advances requested by Borrower under the Senior Loan have been (or concurrently are being) disbursed;
(t) Borrower shall have received all licenses, approvals or evidence of Directors of ARI approving and authorizing (i) other actions required by any Governmental Authority in connection with the execution and delivery by the Borrower of this Agreement or any other Loan Document or with the Loan Documents to which it is a party and performance by the Borrower consummation of the transactions contemplated hereunder hereby and thereunder thereby;
(u) Agent shall have received tax, lien, judgment, bankruptcy and (ii) the execution other searches for Borrower and delivery by ARI of the Loan Documents its Subsidiaries satisfactory to which it is a party and performance of the transactions contemplated hereunder and thereunder, (C) the certificate of formation and operating agreement of the Borrower, and (D) an incumbency certificate regarding the Responsible Officers signing on behalf of ARI for itself and in its capacity as the sole member of the Borrower, incorporating specimen signaturesAgent;
(v) A certificate of an officer of ARLLA and AR Leasing, which is the sole member of ARLLA, certifying (A) AR Leasing’s certificate of formation and operating agreement, (B) the resolutions of the Executive Committee of AR Leasing approving and authorizing (i) the execution and delivery by ARLLA of the Loan Documents to which it is Agent shall have received a party and performance by ARLLA of the transactions contemplated thereunder and (ii) the execution and delivery by AR Leasing of the Loan Documents to which it is a party and performance by AR Leasing of the transactions contemplated thereby, (C) the certificate of formation and operating agreement of ARLLA, and (D) an incumbency certificate incorporating specimen signatures;
(vi) A certificate substantially in the form of Exhibit E, of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) that no event has occurred and is continuing, or would result from the transactions contemplated by the Loan Documents, which constitutes a Default or Event of Default and (B) that all of the representation and warranties of the Borrower set forth in Section 4.1 of this Agreement are true and correct in all material respects;
(vii) Favorable opinions dated the Closing Date and addressed to the Lenders of each of: (A) special counsel to the Borrower or its Affiliates (including opinions of special counsel addressing bankruptcy “true sale” or “absolute assignment” and non-consolidation matters); (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower and (C) ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower;
(viii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and the Secured Party as secured party, covering the Collateral and (ii) naming ARI, as debtor and the Borrower, as secured party (and the Secured Party, as assignee secured party from the Borrower), covering the Equipment and Equipment Leases transferred in accordance with the Contribution and Sale Agreement, in each case to be filed and recorded with the office of the Secretary of State of the State of Delaware on behalf of the Secured Party;
(ix) A duly executed letter from the Borrower to the Collateral Agent authorizing the Collateral Agent to attach the legend described in Section 5.2 of the Security Agreement to each Equipment Lease;
(x) A copy of the Appraisal that is to be the basis of the determination of the Fair Market Value of the Equipment as of the Closing Date;
(xi) Either (A) copies of recent good standing certificates of each of the Borrower and ARI and AR Leasing, certified by the Delaware Secretary of the State (in the case of the Borrower and AR Leasing) and the North Dakota Secretary of State (in the case of ARI), or (B) originals of such good standing certificates certified by the respective states of formation or incorporation, as the case may be, all as reasonably acceptable to the Agent;
(xii) Certified copies of (i) the Management Agreement, (ii) the Collateral Agency Agreement, (iii) the Contribution and Sale Agreement, and (iv) the Lease Administration Agreement;
(xiii) Evidence of the execution and delivery by the Borrower and AR Leasing, as “Manager” under the Lease Administration Agreement, of documents required under Section 17 of the Lease Administration Agreement in respect of the joinder of the Borrower as a new Tranche II Owner and the identification of the Agent as representative of the Lenders and of AR Leasing as an additional Applicable Manager, including (A) a joinder signature page of the Borrower and (B) a Tranche II Owner Notice in the form of Exhibit B to Lease Administration Agreement, including (i) Annex 1: List of additional Tranche II Owner Cars of the Borrower as additional Tranche II Owner (supplementing Exhibit A to the Lease Administration Agreement) and (ii) Annex 2 (supplementing Exhibit O to the Lease Administration Agreement), it being understood that in executing this Agreement, the Agent, the Borrower and initial Lender agree that AR Leasing shall not be required to deliver (1) a notice to the “Users” in the form of Exhibit B to the Lease Administration Agreement, (2) a notice to each relevant railroad or (3) a notice to the Official Railway Equipment Registry concerning the new Tranche II Owner Cars, as set forth in Section 3.3 of the Lease Administration Agreement;
(xiv) Evidence of the deliveries required under Section 9(d) of the Collateral Agency Agreement, including (A) a joinder signature page of the Borrower thereto as a new “Pledgor” thereunder and (B) a Notice of Additional Party to Collateral Agency Agreement executed by the Borrower and AR Leasing in form of Exhibit A to the Collateral Agency Agreement, including (i) Schedule 1: additional Collateral Documents (if applicable) and (ii) Schedule 2: Notice Addresses;
(xv) A security interest perfection certificate of the Borrower, duly executed by an chief financial officer of Borrower that Borrower’s EBITDA plus the Borrower;
(xvi) A security interest perfection certificate amount of ARIOverhead Expenses for the 12 month period ending July 31, duly executed by an officer of ARI;
(xvii) A copy of the Securities Account Control Agreement executed by each party thereto2004 equals or exceeds $2,000,000; and
(xviiiw) the side letter referred to in Section 2.15 executed by the Borrower and the Agent.
(d) The Borrower shall have made arrangements reasonably satisfactory to the Agent to pay for all filing fees and expenses incurred in connection with the filing of the Security Agreement (or customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada, and the UCC-1 Financing Statements (as described above in Section 3.1(c)(vii)) with the Secretary of the State of the State of Delaware.
(e) The Borrower shall have (i) delivered or made arrangements to deliver the original Equipment Leases to the Collateral Agent in accordance with Section 5.2 of the Security Agreement and (ii) authorized the Collateral Agent to legend such original Equipment Leases in the manner described in Section 5.2 of the Security Agreement.
(f) The Agent shall have received evidence satisfactory certificates of insurance evidencing the insurance coverages required pursuant to it Section 6.8; provided, that the Equipment and Equipment Leases to be conveyed loss payee clauses naming Agent as secondary loss payee (subordinate to the Borrower on Senior Agent) may be delivered together with the insurance policies 30 days after the Closing Date constitute part of the Intended Securitization Portfolioas provided in Section 6.8.
Appears in 1 contract
Sources: Loan and Security Agreement (Acme Communications Inc)
Conditions Precedent to the Loan. The obligation of the initial Lender to advance the Loan Lenders shall not be subject to fulfillment of the following conditions precedent on or prior to the Closing Date:
(a) The Borrower shall have delivered to the Agent the Notice of Borrowing and the Pay Proceeds Letter;
(b) The initial Lender shall have received its applicable Note duly executed by the Borrower and the initial Lender shall have received sufficient funds required to make the Loan either from hereunder unless the issuance of commercial paper or from Credit Suisse, if requested;
(c) The Parties have furnished to the Agent shall have received on or before with sufficient copies for the Closing Date Lenders the following documents and satisfied (or such condition has been waived) the following conditions, as applicable, in form and substance satisfactory each case to itAgent's reasonable satisfaction:
(i) This Agreement duly executed Copies of the articles or certificate of incorporation of each Credit Party, together with all amendments, and a certificate of good standing (provided that such good standing certificate for ▇▇▇▇▇▇▇.▇▇▇, Inc. shall be delivered to the Agent within 30 days of the Closing Date) and, if reasonably requested by Agent, a certificate or certificates of qualification to do business as a foreign corporation, each certified by the Borrower;appropriate governmental officer in its jurisdiction of incorporation or other applicable jurisdiction.
(ii) The Security AgreementCopies certified by the Secretary or Assistant Secretary of the applicable Credit Party, together with evidence of its filing by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which such Credit Party is a party.
(iii) An incumbency certificate or filing certificates, executed by the Secretary or Assistant Secretary of each Credit Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of each Credit Party authorized to sign the Loan Documents to which such Credit Party is a customary memorandum thereof) with party, upon which certificate the United States Surface Transportation Board Agent and the Office Lenders shall be entitled to rely until informed of any change in writing by the Credit Party.
(iv) A certificate, signed by the chief financial officer of the Registrar General Borrower, stating that on the Borrowing Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of Canada (and the favorable opinions of i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, the Borrower's counsel, (ii) McAfee & ▇▇▇▇, special Surface Transportation Board aviation counsel to the BorrowerAgent, and ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower, delivered pursuant to subsection (vi) below shall be conclusive evidence of such filings);
(iii) Certificates of insurance naming the Secured Party as additional insured and loss payee for the benefit of the LendersVedder, which satisfy the requirement of Section 4.2 of the Security Agreement;
(iv) A certificate of a Responsible Officer of ARIPrice, which is the sole member of the Borrower, certifying (A) ARI’s articles of incorporation and bylaws, (B) the resolutions of the Board of Directors of ARI approving and authorizing (i) the execution and delivery by the Borrower of the Loan Documents to which it is a party and performance by the Borrower of the transactions contemplated hereunder and thereunder and (ii) the execution and delivery by ARI of the Loan Documents to which it is a party and performance of the transactions contemplated hereunder and thereunder, (C) the certificate of formation and operating agreement of the Borrower, and (D) an incumbency certificate regarding the Responsible Officers signing on behalf of ARI for itself and in its capacity as the sole member of the Borrower, incorporating specimen signatures;
(v) A certificate of an officer of ARLLA and AR Leasing, which is the sole member of ARLLA, certifying (A) AR Leasing’s certificate of formation and operating agreement, (B) the resolutions of the Executive Committee of AR Leasing approving and authorizing (i) the execution and delivery by ARLLA of the Loan Documents to which it is a party and performance by ARLLA of the transactions contemplated thereunder and (ii) the execution and delivery by AR Leasing of the Loan Documents to which it is a party and performance by AR Leasing of the transactions contemplated thereby, (C) the certificate of formation and operating agreement of ARLLA, and (D) an incumbency certificate incorporating specimen signatures;
(vi) A certificate substantially in the form of Exhibit E, of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) that no event has occurred and is continuing, or would result from the transactions contemplated by the Loan Documents, which constitutes a Default or Event of Default and (B) that all of the representation and warranties of the Borrower set forth in Section 4.1 of this Agreement are true and correct in all material respects;
(vii) Favorable opinions dated the Closing Date and addressed to the Lenders of each of: (A) special counsel to the Borrower or its Affiliates (including opinions of special counsel addressing bankruptcy “true sale” or “absolute assignment” and non-consolidation matters); (B) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇Kammholz, special Surface Transportation Board counsel to the Borrower and (C) ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower;
(viii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and the Secured Party as secured party, covering the Collateral and (ii) naming ARI, as debtor and the Borrower, as secured party (and the Secured Party, as assignee secured party from the Borrower), covering the Equipment and Equipment Leases transferred in accordance with the Contribution and Sale AgreementCredit Parties, in each case to be filed and recorded with the office of the Secretary of State of the State of Delaware on behalf of the Secured Party;
(ix) A duly executed letter from the Borrower addressed to the Collateral Agent authorizing the Collateral Agent to attach the legend described Lenders in Section 5.2 of the Security Agreement to each Equipment Lease;
(x) A copy of the Appraisal that is to be the basis of the determination of the Fair Market Value of the Equipment as of the Closing Date;
(xi) Either (A) copies of recent good standing certificates of each of the Borrower form and ARI and AR Leasing, certified by the Delaware Secretary of the State (in the case of the Borrower and AR Leasing) and the North Dakota Secretary of State (in the case of ARI), or (B) originals of such good standing certificates certified by the respective states of formation or incorporation, as the case may be, all as substance reasonably acceptable to the Agent;.
(xiivi) Certified copies Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of (i) the Management Agreement, (ii) the Collateral Agency Agreement, (iii) the Contribution and Sale Agreement, and (iv) the Lease Administration Agreement;each such requesting Lender.
(xiiivii) Evidence of the execution and delivery by the Borrower and AR LeasingWritten money transfer instructions, as “Manager” under the Lease Administration Agreement, of documents required under Section 17 of the Lease Administration Agreement in respect of the joinder of the Borrower as a new Tranche II Owner and the identification of the Agent as representative of the Lenders and of AR Leasing as an additional Applicable Manager, including (A) a joinder signature page of the Borrower and (B) a Tranche II Owner Notice in substantially the form of Exhibit B to Lease Administration AgreementB, including (i) Annex 1: List of additional Tranche II Owner Cars of the Borrower as additional Tranche II Owner (supplementing Exhibit A to the Lease Administration Agreement) and (ii) Annex 2 (supplementing Exhibit O to the Lease Administration Agreement), it being understood that in executing this Agreement, the Agent, the Borrower and initial Lender agree that AR Leasing shall not be required to deliver (1) a notice to the “Users” in the form of Exhibit B to the Lease Administration Agreement, (2) a notice to each relevant railroad or (3) a notice to the Official Railway Equipment Registry concerning the new Tranche II Owner Cars, as set forth in Section 3.3 of the Lease Administration Agreement;
(xiv) Evidence of the deliveries required under Section 9(d) of the Collateral Agency Agreement, including (A) a joinder signature page of the Borrower thereto as a new “Pledgor” thereunder and (B) a Notice of Additional Party to Collateral Agency Agreement executed by the Borrower and AR Leasing in form of Exhibit A to the Collateral Agency Agreement, including (i) Schedule 1: additional Collateral Documents (if applicable) and (ii) Schedule 2: Notice Addresses;
(xv) A security interest perfection certificate of the Borrower, duly executed by an officer of the Borrower;
(xvi) A security interest perfection certificate of ARI, duly executed by an officer of ARI;
(xvii) A copy of the Securities Account Control Agreement executed by each party thereto; and
(xviii) the side letter referred to in Section 2.15 executed by the Borrower and the Agent.
(d) The Borrower shall have made arrangements reasonably satisfactory addressed to the Agent to pay for all filing fees and expenses incurred in connection signed by an Authorized Officer, together with such other related money transfer authorizations as the filing of the Security Agreement (or customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada, and the UCC-1 Financing Statements (as described above in Section 3.1(c)(vii)) with the Secretary of the State of the State of DelawareAgent may have reasonably requested.
(e) The Borrower shall have (i) delivered or made arrangements to deliver the original Equipment Leases to the Collateral Agent in accordance with Section 5.2 of the Security Agreement and (ii) authorized the Collateral Agent to legend such original Equipment Leases in the manner described in Section 5.2 of the Security Agreement.
(f) The Agent shall have received evidence satisfactory to it that the Equipment and Equipment Leases to be conveyed to the Borrower on the Closing Date constitute part of the Intended Securitization Portfolio.
Appears in 1 contract
Sources: Credit Agreement (Ual Corp /De/)
Conditions Precedent to the Loan. The obligation of the initial Lender Bank to advance the Loan shall be extend any credit contemplated by this Agreement is subject to the fulfillment to Bank’s satisfaction of all of the following conditions precedent on or prior to the Closing Dateconditions:
(a) The This Agreement, duly executed by Borrower shall have delivered to the Agent the Notice of Borrowing and the Pay Proceeds Letter;Bank.
(b) The initial Lender shall have received its applicable Note Note, duly executed by the Borrower and the initial Lender shall have received sufficient funds to make the Loan either from the issuance of commercial paper or from Credit Suisse, if requested;Borrower.
(c) The Agent shall have received on or before the Closing Date the following documents in form Security Documents, duly executed by Borrower and substance satisfactory to it:
Holdings (as applicable), together with (i) This Agreement any financing statements requested by Bank, (ii) an acknowledgment to the collateral assignment of Holdings’ membership interest in the Borrower, (iii) deposit account, securities account, and commodity account control agreements to the extent requested by Bank, and (v) landlord waiver letters for Borrower’s collateral locations to the extent required by Bank.
(d) The Guaranties, duly executed by each of the Borrower;Guarantors.
(iie) The Security AgreementOne or more certificates of Borrower’s Secretary or Assistant Secretary certifying that attached to such certificate, together with evidence of its filing or incorporated therein, are (or filing of a customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada (and the favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower, and ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower, delivered pursuant to subsection (vi) below shall be conclusive evidence of such filings);
(iii) Certificates of insurance naming the Secured Party as additional insured and loss payee for the benefit of the Lenders, which satisfy the requirement of Section 4.2 of the Security Agreement;
(iv) A certificate of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) ARI’s articles of incorporation and bylaws, (Bi) the resolutions of Borrower’s Directors authorizing the Board of Directors of ARI approving execution, delivery and authorizing (i) the execution and delivery by the Borrower performance of the Loan Documents to which it Borrower is a party, (ii) true, correct and complete copies of Borrower’s Constituent Documents, and (iii) examples of the signatures of Borrower’s Officers or agents authorized to execute and deliver the Loan Documents to which Borrower is a party and performance other instruments, agreements and certificates, on Borrower’s behalf.
(f) A current certificate issued by the Secretary of State of Minnesota, certifying that Borrower is in good standing and is in compliance with all applicable formation requirements of the transactions contemplated hereunder and thereunder and State of Minnesota.
(iig) One or more certificates from each Guarantor’s Secretary or Assistant Secretary certifying that attached to such certificate, or incorporated therein, are (i) the execution resolutions of each Guarantor’s Directors authorizing the execution, delivery and delivery by ARI performance of the Loan Documents to which it such Guarantor is a party, (ii) true, correct and complete copies of each Guarantor’s Constituent Documents, and (iii) examples of the signatures of each Guarantor’s corporate officers or agents authorized to execute and deliver the Loan Documents to which such Guarantor is a party and performance other instruments, agreements and certificates on such Guarantor’s behalf.
(h) Current copies of the transactions contemplated hereunder and thereunder, (C) certificates of good standing for each Guarantor from the certificate of formation and operating agreement office of the Borrower, and (D) an incumbency certificate regarding the Responsible Officers signing on behalf of ARI for itself and in its capacity as the sole member secretary of the Borrower, incorporating specimen signaturesstate of its incorporation or organization;
(vi) Evidence that Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(j) A certificate of an officer of ARLLA and AR Leasing, which is the sole member of ARLLA, certifying (A) AR Leasing’s certificate of formation and operating agreement, (B) the resolutions of the Executive Committee of AR Leasing approving and authorizing (i) the execution and delivery by ARLLA of the Loan Documents to which it is a party and performance by ARLLA of the transactions contemplated thereunder and (ii) the execution and delivery by AR Leasing of the Loan Documents to which it is a party and performance by AR Leasing of the transactions contemplated thereby, (C) the certificate of formation and operating agreement of ARLLA, and (D) an incumbency certificate incorporating specimen signatures;
(vi) A certificate substantially in the form of Exhibit E, of a Responsible Officer of ARI, which is Borrower confirming that the sole member of the Borrower, certifying (A) that no event has occurred and is continuing, or would result from the transactions contemplated by the Loan Documents, which constitutes a Default or Event of Default and (B) that all of the representation representations and warranties of the Borrower set forth contained in Section 4.1 of this Agreement Article IV and Article V are true correct on and correct in all material respects;
(vii) Favorable opinions dated the Closing Date and addressed to the Lenders of each of: (A) special counsel to the Borrower or its Affiliates (including opinions of special counsel addressing bankruptcy “true sale” or “absolute assignment” and non-consolidation matters); (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Surface Transportation Board counsel to the Borrower and (C) ▇▇▇▇ & Berlis LLP, special Canadian counsel to the Borrower;
(viii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and the Secured Party as secured party, covering the Collateral and (ii) naming ARI, as debtor and the Borrower, as secured party (and the Secured Party, as assignee secured party from the Borrower), covering the Equipment and Equipment Leases transferred in accordance with the Contribution and Sale Agreement, in each case to be filed and recorded with the office of the Secretary of State of the State of Delaware on behalf of the Secured Party;
(ix) A duly executed letter from the Borrower to the Collateral Agent authorizing the Collateral Agent to attach the legend described in Section 5.2 of the Security Agreement to each Equipment Lease;
(x) A copy of the Appraisal that is to be the basis of the determination of the Fair Market Value of the Equipment as of the Closing Date;Date as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date.
(xik) Either A favorable opinion of counsel to Borrower and Guarantors, addressed to Bank.
(Al) copies of recent good standing certificates of each Certificates of the insurance required hereunder, with all hazard insurance containing a lender’s loss payable endorsement in Bank’s favor and with all liability insurance naming Bank as an additional insured.
(m) Payment of reasonable expenses incurred by Bank through such date and required to be paid by Borrower under Section 8.5 including all reasonable legal expenses.
(n) The capital and organizational structure of Holdings and Borrower shall be reasonably satisfactory to Bank.
(o) Bank shall have received financing statement, tax, and judgment lien search results against the Property of Borrower and ARI each Guarantor evidencing the absence of Liens on the Collateral except as permitted by Section 6.4 hereof.
(p) Bank shall have received pay-off and AR Leasinglien release letters from secured creditors of Borrower setting forth, certified by among other things, the Delaware Secretary total amount of Indebtedness outstanding and owing to them (or outstanding letters of credit issued for the State (in the case account of the Borrower and AR LeasingBorrower) and containing an undertaking to cause to be delivered to Bank UCC termination statements and any other lien release instruments necessary to release their Liens on the North Dakota Secretary assets of State (Borrower, which pay-off and lien release letters shall be in the case of ARI), or (B) originals of such good standing certificates certified by the respective states of formation or incorporation, as the case may be, all as form and substance reasonably acceptable to the Agent;
(xii) Certified copies of (i) the Management Agreement, (ii) the Collateral Agency Agreement, (iii) the Contribution and Sale Agreement, and (iv) the Lease Administration Agreement;
(xiii) Evidence of the execution and delivery by the Borrower and AR Leasing, as “Manager” under the Lease Administration Agreement, of documents required under Section 17 of the Lease Administration Agreement in respect of the joinder of the Borrower as a new Tranche II Owner and the identification of the Agent as representative of the Lenders and of AR Leasing as an additional Applicable Manager, including (A) a joinder signature page of the Borrower and (B) a Tranche II Owner Notice in the form of Exhibit B to Lease Administration Agreement, including (i) Annex 1: List of additional Tranche II Owner Cars of the Borrower as additional Tranche II Owner (supplementing Exhibit A to the Lease Administration Agreement) and (ii) Annex 2 (supplementing Exhibit O to the Lease Administration Agreement), it being understood that in executing this Agreement, the Agent, the Borrower and initial Lender agree that AR Leasing shall not be required to deliver (1) a notice to the “Users” in the form of Exhibit B to the Lease Administration Agreement, (2) a notice to each relevant railroad or (3) a notice to the Official Railway Equipment Registry concerning the new Tranche II Owner Cars, as set forth in Section 3.3 of the Lease Administration Agreement;
(xiv) Evidence of the deliveries required under Section 9(d) of the Collateral Agency Agreement, including (A) a joinder signature page of the Borrower thereto as a new “Pledgor” thereunder and (B) a Notice of Additional Party to Collateral Agency Agreement executed by the Borrower and AR Leasing in form of Exhibit A to the Collateral Agency Agreement, including (i) Schedule 1: additional Collateral Documents (if applicable) and (ii) Schedule 2: Notice Addresses;
(xv) A security interest perfection certificate of the Borrower, duly executed by an officer of the Borrower;
(xvi) A security interest perfection certificate of ARI, duly executed by an officer of ARI;
(xvii) A copy of the Securities Account Control Agreement executed by each party thereto; and
(xviii) the side letter referred to in Section 2.15 executed by the Borrower and the AgentBank.
(d) The Borrower shall have made arrangements reasonably satisfactory to the Agent to pay for all filing fees and expenses incurred in connection with the filing of the Security Agreement (or customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada, and the UCC-1 Financing Statements (as described above in Section 3.1(c)(vii)) with the Secretary of the State of the State of Delaware.
(e) The Borrower shall have (i) delivered or made arrangements to deliver the original Equipment Leases to the Collateral Agent in accordance with Section 5.2 of the Security Agreement and (ii) authorized the Collateral Agent to legend such original Equipment Leases in the manner described in Section 5.2 of the Security Agreement.
(f) The Agent shall have received evidence satisfactory to it that the Equipment and Equipment Leases to be conveyed to the Borrower on the Closing Date constitute part of the Intended Securitization Portfolio.
Appears in 1 contract
Sources: Credit Agreement (Landec Corp \Ca\)