Drawdown Subject to the terms and conditions of this Agreement, each Advance shall be made to the Borrowers following receipt by the Agent from the Borrowers of a Drawdown Notice not later than 10:00 a.m. on the third Banking Day before the date, which shall be a Banking Day falling within the Drawdown Period for such Advance, on which the Borrowers propose such Advance is made. A Drawdown Notice shall be effective on actual receipt by the Agent and, once given, shall, subject as provided in clause 3.6.1, be irrevocable.
SALE/PURCHASE OF INITIAL LOANS (A) Consummation of Sale and Purchase The sale and purchase of Eligible Loans pursuant to the Initial Purchase Agreement to be dated as of the Closing Date shall be consummated upon (i) Funding’s receipt from VL Funding and the VL Funding Eligible Lender Trustee for the benefit of VL Funding of the Initial Xxxx of Sale and (ii) the payment by Funding to VL Funding of the Initial Payment. Upon consummation, such sale and purchase shall be effective as of the date of the Initial Xxxx of Sale. VL Funding and Funding shall use their best efforts to perform promptly their respective obligations pursuant to the Initial Purchase Agreement with respect to each Initial Loan.
(B) Settlement of the Initial Payment On the date of the Initial Xxxx of Sale, Funding shall pay to VL Funding the Initial Payment by wire transfer of immediately available funds to the account specified by VL Funding.
(C) Interest Subsidy and Special Allowance Payments and Rebate Fees VL Funding shall be entitled to all Interest Subsidy Payments and Special Allowance Payments on each Initial Loan accruing up to but not including the Initial Cutoff Date and shall be responsible for the payment of any rebate fees applicable to the Initial Loans accruing up to but not including the Initial Cutoff Date. The Interim Eligible Lender Trustee on behalf of Funding shall be entitled to all Special Allowance Payments and Interest Subsidy Payments on the Initial Loans accruing from the Initial Cutoff Date, and shall be responsible for the payment of any rebate fees applicable to the Initial Loans accruing from the Initial Cutoff Date.
Drawdowns (a) With respect to drawdowns by the Company, each Subscriber will be required to fund drawdowns to purchase Shares (a “Drawdown Purchase”) up to the amount of their respective Capital Commitment each time the Company delivers a notice (a “Drawdown Notice”). Drawdown Notices will specify (i) the amount of the Drawdown (the “Drawdown Amount”); (ii) the portion of the Drawdown Amount to be paid by such Subscriber; (iii) the estimated number of Shares to be purchased by such Subscriber; and (iv) the date (the “Drawdown Date”) on which such Drawdown Amount is due. On the Drawdown Date, if, in connection with a per share price adjustment described in paragraph 4(b) below, the number of Shares to be purchased by a Subscriber differs from the amount set forth in the Drawdown Notice, the Company will deliver to the Subscriber an additional notice setting forth the actual number of Shares to be purchased by such Subscriber. Drawdown Notices will be delivered to each Subscriber at least seven business days prior to the Drawdown Date. All purchases pursuant to a Drawdown Notice will generally be made pro rata, in accordance with the remaining Capital Commitments of all Subscriber. To accommodate the legal, tax, regulatory or fiscal concerns of certain prospective investors, the Company may determine to allow certain investors to fully fund their Capital Commitment at one point in time, in lieu of sequential drawdowns of the Capital Commitment as described in this Section 4. No Subscriber shall be required to invest more than the total amount of its Capital Commitment.
(b) The initial price of Shares is $20.00 per share on the initial Drawdown Date. For each subsequent Drawdown Date, the price per share shall equal the Company’s net asset value per share as of the close of the last calendar quarter preceding the applicable Drawdown Date, subject to the Company’s Board of Directors or a committee thereof making a determination, no later than 48 hours (excluding Sundays and holidays) prior to the Drawdown Date or the Catch-up Date, as applicable, that the Company is not selling Shares at a price per Share that is below its then-current net asset value per Share.
(c) Each Drawdown Amount shall be payable in U.S. Dollars and in immediately available funds. Payment of a Drawdown Amount shall be made on or prior to the applicable Drawdown Date and as promptly as possible after delivery of a Drawdown Notice. The delivery of a Drawdown Notice to the Subscriber shall be the sole and exclusive condition to its irrevocable and unconditional obligation to pay the Drawdown Amount, without any right of offset, reduction, counterclaim or defense.
(d) Concurrent with any payment of all or a portion of the amount of a Drawdown Amount, the Company shall issue to the Subscriber a number of Shares equal to (i) the amount of such Drawdown Amount funded by the Subscriber on the applicable Drawdown Date divided by (ii) the price per Share as determined above. For the avoidance of doubt, the Company shall not issue Shares for any portion of the Subscriber’s Capital Commitment that has not been paid to the Company and used to purchase Shares pursuant to one or more Drawdown Notices (the “Undrawn Capital Commitment”).
(e) The Company retains the right to exclude any Subscriber from purchasing Shares on any Drawdown Date if, in the Company’s reasonable discretion, there is a substantial likelihood that such Subscriber’s purchase of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Subscriber, the Company, the Adviser, any other Subscriber or a portfolio company of the Company would be subject, (ii) subject the Company, the Adviser or any other Subscriber or a portfolio company to any material filing requirement or regulatory requirement or material tax or withholding requirement, (iii) cause the investments of “Benefit Plan Investors” (within the meaning of Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and certain Department of Labor regulations) to be significant and the Company’s assets to be considered “plan assets” for purposes of ERISA or Section 4975 of the Code, or (iv) impair, delay or otherwise have an adverse impact on the Company’s ability to make or continue to hold an investment or require the Adviser to modify the terms of an investment in a manner materially adverse to the Company. Accordingly, the Subscriber acknowledges and agrees that the Company may, in its reasonable discretion, from time to time require Drawdown Purchases from other investors and not the Subscriber. Accordingly, Drawdown Notices may be issued to only certain investors and stockholders of the Company (including or excluding the Subscriber) from time to time and require a purchase of Shares by such investors in amounts determined by the Company in its reasonable discretion.
(f) The Subscriber specifically agrees and consents that the Company may, at any time, without further notice to or consent from the Subscriber (except to the extent otherwise provided in this Subscription Agreement), grant security over and, in connection therewith, Transfer (as defined below) its right to draw down capital from the Subscriber pursuant to this Section 4, the Company’s right to receive the Drawdown Purchase (and any related rights of the Company), to lenders or other creditors of the Company, in connection with any indebtedness, guarantee or surety of the Company; provided, that, for the avoidance of doubt, any such grantee’s right to draw down capital shall be subject to the limitations on the Company’s right to draw down capital pursuant to this Section 4.
(g) In connection with any credit facility, the Subscriber, subject to the other terms of this Subscription Agreement, (i) acknowledges and confirms that (1) under the terms of and subject to the limitations and conditions set forth in this Subscription Agreement, such Subscriber is and shall remain obligated to fund its unfunded Capital Commitment required on account of capital calls duly made in accordance with the terms of this Subscription Agreement, without setoff, counterclaim or defense, including without limitation any defense of fraud or mistake, or any defense under any bankruptcy or insolvency law, including Section 365 of the U.S. Bankruptcy Code; provided that such agreement to fund, without defense, counterclaim or offset, shall not act as a waiver of any claim such Subscriber may have against any other Subscriber, the Company, the Adviser or a lender under any such credit facility (a “Lender”); (2) this Subscription Agreement constitute such Subscriber’s legal, valid and binding obligation, enforceable against such Subscriber in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws affecting creditors’ rights generally and to general principles of equity; and (3) the Lender is extending credit to the Company in reliance on such Subscriber’s funding of its Capital Commitments as such Lender’s primary source of repayment; (ii) agrees that such Subscriber will honor capital calls made by a Lender, or any agent acting on behalf of such Lender (an “Agent”), in accordance with the terms of this Subscription Agreement; (iii) acknowledges and consents to the pledge of assets of the Company, including, without limitation, security (including an assignment by way of security) granted by the Company over all or a portion of the Company’s rights contained the Company Documents and this Subscription Agreement, the right to deliver written notices of a call for capital contributions and receive additional capital contributions and enforce all remedies against Subscribers that fail to fund their respective unfunded Capital Commitments in accordance with the terms of this Subscription Agreement; (iv) acknowledges and consents that for so long as any credit facility is in place, the Company may agree with the Lender not to amend, modify, supplement, cancel, reduce or suspend any of such Subscriber’s obligations to fund its Capital Commitment or other payment obligations under this Subscription Agreement or the Company Documents without the Lender’s prior written consent; (v) acknowledges and confirms that, for so long as the credit facility is in place, all payments made by such Subscriber under this Subscription Agreement will, if the Lender so directs, be made by wire transfer of immediately available funds to an account established by the Company which the Company may also pledge to any Lender for the benefit of the Lender to secure all obligations of the Company under the credit facility, including the payment obligations relating to loans made under the credit facility; and (vi) acknowledges and agrees that (1) any excuse right, exclusion right or other limitation with respect to any Drawdown Purchase shall not be applicable with respect to any capital call the purpose of which is to repay amounts due under the credit facility, regardless of whether the related capital call is issued by the Lender under the credit facility; and (2) in the event such Subscriber is entitled to Transfer its Shares or withdraw from the Company pursuant to any provision of this Subscription Agreement, prior to the effectiveness of such Transfer or withdrawal, as applicable, such Subscriber shall be obligated to fund such Drawdown Purchase as may be required under the terms of the credit facility as a result of such Transfer or withdrawal (but in no event in excess of such Subscriber’s unfunded Capital Commitment). For the avoidance of doubt, for all purposes under this Subscription Agreement, payments made by Subscribers directly to a Lender, Agent or account pursuant to written notice of a call for capital contribution issued in accordance with this Section 4(g) shall be treated as if such payments had been made directly to the Company by the Subscribers pursuant to a written notice of a call for capital contribution issued by the Company, and the Company shall make such adjustments as necessary or appropriate to effect such treatment.
Drawdown Date The date on which any Loan is made or is to be made, and the date on which any Loan which is made prior to the Maturity Date, as applicable, is converted in accordance with §4.1.
Drawdown Notice At any time during the Commitment Period, the Company may request the Investor to purchase shares of Common Stock by delivering a Drawdown Notice to the Investor, subject to the conditions set forth in Section 7.2; provided, however, the amount for each Advance as designated by the Company in the applicable Drawdown Notice shall not be more than the Maximum Advance Amount and the aggregate amount of the Advances pursuant to this Agreement shall not exceed the Commitment Amount. The Company acknowledges that the Investor may sell shares of the Company’s Common Stock corresponding with a particular Drawdown Notice after the Drawdown Notice is received by the Investor. There shall be a minimum of five (5) Trading Days between each Drawdown Notice Date.
Initial Advance Borrower shall have delivered to Lender each of the following, in form and substance satisfactory to Lender (the date on which each of the following shall have been so delivered is referred to herein as the “Effective Date”):
(a) executed originals of the Loan Documents and all other documents and instruments reasonably required by Lender to effectuate the transactions contemplated hereby or to create and perfect the Liens of Lender with respect to all Collateral, in all cases in form and substance reasonably acceptable to Lender;
(b) certified copy of resolutions of Borrower’s board of directors evidencing approval of (i) the Loan and other transactions evidenced by the Loan Documents; and (ii) the Warrant and transactions evidenced thereby;
(c) certified copies of the Certificate of Incorporation and the Bylaws, as amended through the Closing Date, of Borrower;
(d) a certificate of good standing for Borrower from its state of incorporation and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified would have a Material Adverse Effect;
(e) a certificate of incumbency as to each officer of Borrower who is authorized to execute the Loan Documents, the Warrant, and all other documents and instruments to be delivered pursuant to the Loan Documents and the Warrant on behalf of Borrower, including, without limitation, the chief financial officer of Borrower;
(f) payment of the Facility Charge and reimbursement of Lender’s current expenses reimbursable pursuant to this Agreement, which amounts may be deducted from the initial Advance;
(g) Landlord Consents or Bailee Agreements, as applicable, for the premises where the Financed Equipment will, upon completion of transit, be located; provided, that up to $3,750,000 of the initial Advance may be used for the purchase of International Based Financed Equipment without delivering to Lender, prior to the disbursement of such Advance, any Landlord Consents in respect of the premises in the continental United States where such International Based Financed Equipment may be located temporarily, so long as (i) prior to the disbursement of such Advance, one or more Bailee Agreements, as applicable, are delivered in respect of the foreign premises where such International Based Financed Equipment will be located upon completion of transit, and (ii) within 90 days of the Effective Date (or any subsequent Advance Date with respect to any International Based Financed Equipment not financed on the Effective Date), such International Based Financed Equipment is relocated to such foreign premises;
(h) a Consent Letter from each Incumbent Lender;
(i) a Release Letter from each Incumbent Lender with respect to the Financed Equipment purchased with the proceeds of the initial Advance; and
(j) such other documents as Lender may reasonably request.
Initial Loans This Agreement shall not become effective nor shall the Lenders be required to make the initial Loans unless (i) since December 31, 2009, no event, development or circumstance shall have occurred that has had, or could reasonably be expected to have, a material adverse effect on the business, assets, operations or financial condition of Harley and its subsidiaries taken as a whole and (ii) the Borrowers shall have (a) paid all fees required to be paid in connection with the execution of this Agreement, (b) furnished to the Global Administrative Agent, with sufficient copies (other than in the case of any Notes) for each of the Lenders, such documents as the Global Administrative Agent or any Lender or its counsel may have reasonably requested, including, without limitation, all of the documents reflected on the List of Closing Documents attached as Exhibit D to this Agreement, (c) obtained all governmental and third party approvals necessary in connection with the financing contemplated hereby and the continuing operations of Harley and its Subsidiaries (including the Borrowers) and such approvals remain in full force and effect, (d) delivered to the Lenders (1) audited consolidated financial statements of Harley (on a Consolidated basis), (2) unaudited Consolidated financial statements of Harley (excluding HDFS and its Subsidiaries), (3) audited Consolidated financial statements of HDFS and its Subsidiaries (on a Consolidated basis), in the case of each of the foregoing clauses (1), (2) and (3), for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available and (4) financial statement projections of (A) Harley (on a Consolidated basis), (B) Harley (excluding HDFS and its Subsidiaries) and (C) HDFS and its Subsidiaries, in the case of each of the foregoing clauses (A), (B) and (C), for the 2010 fiscal year, together with key underlying assumptions in reasonable detail and (e) delivered evidence reasonably satisfactory to the Global Administrative Agent of the payment of all principal, interest, fees and premiums, if any, on all Indebtedness under the Existing Credit Agreement, and the termination of the applicable agreements relating thereto, all taking effect concurrently with the effectiveness of this Agreement; provided that any Lender hereunder which is also a “Lender” under the Existing Credit Agreement hereby waives any requirement of five (5) Business Days notice by the “Borrowers” under the Existing Credit Agreement prior to the reduction of the commitments thereunder and the termination thereof.
Initial Advances In addition to the terms and conditions set forth in Section 4.2, the obligation of the Lenders to make the initial Advance is conditioned on the Administrative Agent receiving, prior to or on the date of such Advance, each of the following items in form, detail and content reasonably satisfactory to the Administrative Agent, each Lender, and its counsel:
(a) a duly executed Revolving Credit Note for each Lender which has requested the same;
(b) a certificate of the secretary or an assistant secretary of the Borrower and each of its Subsidiaries (i) certifying an attached complete and correct copy of its bylaws; (ii) solely in the case of the Borrower, certifying an attached complete and correct copy of resolutions duly adopted by the Borrower’s board of directors which have not been amended since their adoption and remain in full force and effect, authorizing the execution, delivery and performance of this Agreement and the Related Documents to which it is a party; (iii) solely in the case of Independent Bank, certifying an attached copy of its certificate of formation, and in the case of the Borrower and each other Subsidiary, certifying that the articles of incorporation or charter attached to the applicable certificate of the Office of the Secretary of State of incorporation delivered pursuant to Section 4.1(d) hereof are complete and correct and have not been amended since the date of the last date of amendment thereto indicated on such certificate of the secretary of state; and (iv) certifying as to the incumbency and specimen signature of each officer executing this Agreement and all other Related Documents to which it is a party, and including a certification by another officer as to the incumbency and signature of the secretary or assistant secretary executing the certificate;
(c) an opinion of counsel for the Borrower in form and substance reasonably satisfactory to the Administrative Agent, its counsel, and each Lender;
(d) certificates of status or good standing for the Borrower and each Subsidiary issued by the applicable Office of the Secretary of State of incorporation or organization and the respective state, if any, in which the Borrower’s or such Subsidiary’s principal place of business is located, and certified copies of the articles of incorporation for the Borrower and each Subsidiary, all issued by the Office of the Secretary of State of the state of the Borrower’s or such Subsidiary’s incorporation, as applicable, within thirty (30) days of the date hereof;
(e) certification that there are no (i) Material Liens of record on the Property of the Borrower only (and not any of its Subsidiaries) other than Permitted Liens and (ii) Material Liens of record on the Property of any Bank Subsidiary other than Permitted Liens;
(f) a duly executed Negative Pledge Agreement;
(g) a duly executed Notice of Authorized Borrowers; and
(h) a duly executed Authority to Debit Account.
Loan Amount 5. ACCOUNT NAME(S) ............................................................................................................................................................................. BANK NAME / BRANCH ..................................................................................................................................................................
Initial Loan The obligation of the Lender to make its initial Loan hereunder is subject to the satisfaction, immediately prior to or concurrently with the making of such Loan, of the condition precedent that the Lender shall have received all of the following items, each of which shall be satisfactory to the Lender and its counsel in form and substance:
