Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect; (k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ares Capital Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be pursuant to this Agreement is subject to the conditions condition precedent that the Administrative Agent shall have received received, on or before the Closing Date date of such initial Advance, the following, following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative Agent:
(a) each Each of the Facility Documents (other than First-Step Receivables Purchase Agreement and the Collateral Agent Fee LetterSale Agreement, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies A certificate of the Constituent Documents Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the Borrower, the Equityholder officers authorized on its behalf to sign this Agreement and the Servicer other Transaction Documents to be delivered by it hereunder (on which certificate the Agent and the Lenders may conclusively rely until such time as in effect on the Closing DateAgent shall receive from such Loan Party a revised certificate meeting the requirements of this SUBSECTION (b));
(c) a The articles or certificate of incorporation of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of incorporation, as of a Responsible Officer recent date acceptable to the Agent in each case together with a copy of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as by-laws of such earlier date)Loan Party, (iv) that no Default duly certified by the Secretary or Event an Assistant Secretary of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partysuch Loan Party;
(d) [Reserved]Copies of good standing certificates (or the equivalent) for each Loan Party, issued by the Secretaries of State of the state of incorporation of such Loan Party and the state where such Loan Party's principal place of business is located;
(e) [Reserved]Acknowledgment copies (or other evidence of filing reasonably acceptable to the Agent) of (i) proper financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming each of the Originators as debtor and seller of its Receivables and Related Assets, PCC as the secured party, and the Borrower as assignee, (ii) UCC-3 assignments with respect to each of the financing statements described in clause (i) above naming the Agent, for the benefit of the Secured Parties, as assignee of the Borrower, and (iii) financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Borrower as the debtor and the Agent, as agent for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by each of the Originators to PCC, and by PCC to the Borrower of, and the Agent's security interest in the Collateral;
(f) a certificate of a Responsible Officer of Search reports provided in writing to the Servicer certifying Agent (i) listing all effective financing statements that name any Originator or Loan Party as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement debtor and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth are filed in the Facility Documents jurisdictions in which filings were made pursuant to SUBSECTION (e) above and in such other jurisdictions that the Agent shall reasonably request, together with copies of such financing statements (none of which it is a party are true and correct in all material respects as (other than any of the Closing Date financing statements described in SUBSECTION (except to the extent such representations and warranties expressly relate to e) or above or in SUBSECTION (m) below) shall cover any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier dateReceivables or Related Assets), and (ivii) as listing all tax liens and judgment liens (if any) filed against any debtor referred to in CLAUSE (i) above in the incumbency jurisdictions described therein and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyshowing no such Liens;
(g) financing statements The Subordinated Note, duly executed by the Borrower (or the equivalent thereof in and any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, revolving notes to be issued under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated First-Step Receivables Purchase Agreement, duly executed by this AgreementPCC);
(h) copies Favorable opinions of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of CadwaladerStoel Rives LLP, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq. and ▇▇▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇, counsel to collectively covering the Administrative Agent, matters set forth in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the BorrowerEXHIBIT 5.1(h);
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) Favorable opinions of counsel to the Originators and the Loan Parties, as to:
(1) the existence of a "true sale" of the Receivables from each of the Originators to PCC under the First-Step Receivables Purchase Agreement and from PCC to the Borrower is under the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Sale Agreement; and
(iii2) upon the grant by inapplicability of the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from doctrine of substantive consolidation to the Borrower as and each of the Agents Originators and PCC in connection with any bankruptcy proceeding involving any of the Originators or any Lender shall have reasonably requested.PCC;
Appears in 1 contract
Sources: Credit and Security Agreement (Precision Castparts Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender initial Advances pursuant to make its initial Advance hereunder shall be this Agreement is subject to the conditions condition precedent that each of the Administrative Agent Co-Agents shall have received received, on or before the Closing Date date of such initial Advance, the following, following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to each of the Administrative AgentCo-Agents:
(a) The Sale Agreement, duly executed by the parties thereto;
(b) A certificate of the Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Agents and the Lenders may conclusively rely until such time as each of the Facility Documents Co-Agents shall receive from such Loan Party a revised certificate meeting the requirements of this SUBSECTION (b));
(c) The Certificate of Incorporation of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of incorporation, as of a recent date acceptable to Co-Agents in each case together with a copy of the by-laws of such Loan Party, duly certified by the Secretary or an Assistant Secretary of such Loan Party;
(d) Copies of good standing certificates for each Loan Party, issued by the Secretaries of State of the state of incorporation of such Loan Party and the state where such Loan Party's principal place of business is located;
(e) Acknowledgment copies (or other than the Collateral Agent Fee Letter, which shall be delivered directly evidence of filing reasonably acceptable to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) proper financing statements (Form UCC-1), in such form as to the Collateral Agent may reasonably request, naming each of the Originators as debtor and seller of its Constituent DocumentsReceivables and Related Assets, the Borrower as the secured party and purchaser thereof and the Collateral Agent, as agent for the Secured Parties, as assignee, and (ii) financing statements (Form UCC-1), in such form as to its resolutions or other action of its member approving this Agreement the Collateral Agent may reasonably request, naming the Borrower as the debtor and the other Facility Documents Collateral Agent, as agent for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Collateral Agent desirable under the UCC or any comparable law of all appropriate jurisdictions to which it is a party perfect the sale by each of the Originators to the Borrower of, and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth Collateral Agent's security interest in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved]Collateral;
(f) a certificate of a Responsible Officer of Search reports provided in writing to the Servicer certifying Co-Agents (i) listing all effective financing statements that name any Loan Party as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement debtor and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth are filed in the Facility Documents jurisdictions in which filings were made pursuant to SUBSECTION (e) above and in such other jurisdictions that the Collateral Agent shall reasonably request, together with copies of such financing statements (none of which it is a party are true and correct in all material respects as (other than any of the Closing Date financing statements described in SUBSECTION (except to the extent such representations and warranties expressly relate to e) above) shall cover any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier dateReceivables or Related Assets), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable listing all tax liens and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby judgment liens (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.if
Appears in 1 contract
Sources: Credit and Security Agreement (Interim Services Inc)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial an Advance hereunder shall be on or after the date of this Agreement (an "Initial Advance") is subject to the satisfaction of the following conditions precedent before or concurrently with the Closing Date:
(a) Before giving effect to the transactions contemplated by this Agreement, there shall have occurred no Material Adverse Change since May 31, 1999.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the Administrative Agent matters described on the Disclosure Schedule (the "DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of this Agreement, the Note, any other Loan Document or the consummation of the transactions contemplated hereby.
(c) Borrower shall have paid all accrued expenses of Lender which Borrower is required to pay under the Loan Documents (including the accrued, reasonable fees and expenses of counsel to Lender).
(d) Lender shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent:Lender (unless otherwise specified):
(ai) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly The Note payable to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;order of Lender.
(bii) true and complete Certified copies of the Constituent Documents resolutions of the BorrowerBoard of Directors of Borrower approving this Agreement, the Equityholder Note and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or each other action of its member approving this Agreement and the other Facility Documents Loan Document to which it is or is to be a party, and of all documents evidencing other necessary action and governmental and other third party approvals and consents, if any, with respect to the transactions contemplated hereby Advances, this Agreement, the Note and thereby, each other Loan Document.
(iii) that its representations and warranties set forth A copy of the organizational Documents of Borrower, together with each amendment thereto, and, in the Facility Documents to which it is a party are true and correct in all material respects case of the certificate of incorporation of Borrower, certified (as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (ivDate) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with by the Secretary of State of the jurisdiction of its formation or incorporation as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of Delaware the jurisdiction of its formation, dated reasonably near the Closing Date, certifying that (A) Borrower has paid all franchise taxes to the date of such certificate and (B) Borrower is duly incorporated or formed and in good standing under the laws of the State of the jurisdiction of its organization.
(v) A certificate of Borrower, signed on behalf of the Borrower by a duly authorized officer of Borrower, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (B) the absence of any event occurring and continuing, or resulting from any Advance, that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant Secretary of an authorized officer of Borrower certifying the names and true signatures of the officers of Borrower authorized to sign this Agreement, the Note and each other Loan Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vii) An amended and restated security agreement in form and substance satisfactory to Lender pledging to Lender and granting Lender a security interest in all of Borrower's right, title and interest in the Collateral described therein (such agreement, as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "SECURITY AGREEMENT"), duly executed by Borrower, together with:
(A) acknowledgment copies of proper financing statements, delivered for filing on or before the Closing Date under the Uniform Commercial Code of the State of Florida, as well as any other applicable filing office jurisdictions deemed necessary or desirable by Lender, covering the Collateral described in any applicable jurisdiction the Security Agreement,
(B) completed requests for information, dated on or before the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name Borrower as debtor, together with copies of such other financing statements, and
(C) evidence of the Administrative Agent deems completion of all other recordings and filings of or with respect to the Security Agreement that Lender may deem necessary or desirable in order to perfect and protect the interests in the Collateral contemplated by this Agreement;Liens created thereby.
(hviii) copies An Omnibus Amendment of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted even date herewith duly executed by the Borrower, the Equityholder or any transferor;Lender and LNR.
(iix) legal opinions A favorable opinion of (addressed to each of the Secured PartiesA) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP with respect to the valid existence, due authorization and execution of the Loan Documents by Borrower and (B) Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, special counsel for Borrower, with respect to the Administrative Agentenforceability of the Loan Documents, in connection with the transactions contemplated hereby each case, in form satisfactory to Lender.
(e) Prior to the extent invoiced on or prior the Closing Date) Mortgage Loan Advances Termination Date and for so long as any Mortgage Loan Advances remain outstanding, Borrower shall have been paid by Facility Equity in an amount equal to or greater than the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Minimum Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedValue.
Appears in 1 contract
Sources: Credit Agreement (LNR Property Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be pursuant to this Agreement is subject to the following conditions precedent that the Administrative precedent:
(a) each Co-Agent shall have received received, on or before the Closing Date date of such initial Advance, the following, each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative such Co-Agent:
(ai) The Sale Agreements, duly executed by the parties thereto, together with bills of sale with respect to the Related Equipment, duly executed by the Originator in favor of LLR LLC;
(ii) A certificate of the Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Co-Agents and the Lenders may conclusively rely until such time as each of the Facility Co-Agents shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (a)(ii));
(iii) The Organic Documents of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of organization or by the Secretary or an Assistant Secretary of such Loan Party, as of a recent date acceptable to each of the Co-Agents;
(iv) Copies of good standing certificates for each Loan Party, issued by the Secretaries of State of the state of organization of such Loan Party and the state where such Loan Party's principal place of business is located;
(v) Signed copies of (A) proper financing statements (Form UCC-1), in such form as the Administrative Agent may reasonably request, naming (1) the Originator as the debtor and seller of its Receivables and Related Assets, LLR LLC as the secured party and purchaser thereof and the Borrower, as assignee, together with a financing statement assignment (Form UCC-3) naming the Administrative Agent, for the benefit of the Secured Parties, as assignee, (2) LLR LLC as the debtor and seller of the Receivables and Related Assets (other than Related Equipment), the Collateral Agent Fee LetterBorrower, which shall as the secured party and purchaser thereof and the Administrative Agent, for the benefit of the Secured Parties, as assignee, and (3) LLR LLC as the debtor and pledgor of the Security Agreement Collateral, and the Administrative Agent, for the benefit of the Secured Parties, as secured party, and (B) such other instruments or documents as may be delivered directly necessary or, in the opinion of the Administrative Agent, desirable, under the UCC or any comparable law of all appropriate jurisdictions to perfect the sales of the Receivables and Related Assets under the Sale Agreements and the Administrative Agent's security interests in the Collateral;
(vi) Search reports provided in writing to the Collateral Administrative Agent, on behalf of the Secured Parties, (A) listing all effective financing statements that name the Originator, the Borrower or LLR LLC as debtor and that are filed in the jurisdictions in which filings were made pursuant to subsection (v) above and in such other jurisdictions that the Administrative Agent shall reasonably request, together with copies of such financing statements (none of which (other than any of the financing statements described in subsection (v) above) shall cover any Receivables or Related Assets), and (B) listing all tax liens and judgment liens (if any) filed against any debtor referred to in clause (A) above in the jurisdictions described therein and showing no such Liens;
(vii) Evidence that the Initial Seller Note referenced in the Sale Agreement (Step 2) has been duly executed and delivered by the parties thereto, which shall each be Borrower and that the Initial Seller Note referenced in full force the Sale Agreement (Step 1) has been duly executed and effectdelivered by LLR LLC;
(bviii) Favorable opinions of King & Spalding, counsel to the Loan Parties, in substantially the form of Exhibit 5.1(a)(viii);
(ix) A favorable opinion of King & Spalding, counsel to the Loan Parties, as to:
(A) the existence of a "true and complete copies sale" of the Constituent Documents Receivables from the Originator to LLR LLC under the Sale Agreement (Step 1);
(B) the existence of a "true sale" of the Receivables from LLR LLC to the Borrower under the Sale Agreement (Step 2); and
(C) the inapplicability of the doctrine of substantive consolidation to (1) the Borrower with the Originator, or (2) LLR LLC with the Originator, in each case in connection with any bankruptcy proceeding involving any of the foregoing;
(x) A pro forma Settlement Report, prepared as of the Cut-Off Date of April 30, 2000;
(xi) A report in form and substance satisfactory to the Co-Agents from the Initial Due Diligence Auditor as to a pre-closing due diligence audit by the Initial Due Diligence Auditor;
(xii) Each of the Liquidity Agreements, in form and substance satisfactory to the applicable Co-Agent, duly executed by the parties thereto;
(xiii) Lock-Box Agreements with respect to each Lock-Box Account, duly executed by the parties thereto;
(xiv) The Secured Guaranty, duly executed by the parties thereto;
(xv) The Security Agreement (Lani▇▇ ▇▇▇se Receivables LLC), duly executed by the parties thereto;
(xvi) The Intercreditor Agreement, duly executed by the parties thereto;
(xvii) The Performance Guaranty, duly executed by the parties thereto;
(xviii) With respect to Lani▇▇, ▇ consolidated balance sheet, income statement and statement of shareholders' equity as at December 31, 1999 and, with respect to the Borrower, a pro forma balance sheet as at the Equityholder date of this Agreement after giving prospective effect to the transactions contemplated to occur on such date pursuant to the Transaction Documents and the Servicer initial Advance hereunder, each of the foregoing together with a certification of the chief financial officer or treasurer in the form attached hereto as in effect on the Closing DateExhibit 5.1(a)(xx);
(cxix) a The Fee Letters, duly executed by the parties thereto;
(xx) A certificate of a Responsible Officer the chief executive officer, president, vice president-finance or secretary of each of the Borrower Loan Parties certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to date of the extent such representations and warranties expressly relate to any earlier dateinitial Advance, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default Liquidation Event or Unmatured Liquidation Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(dxxi) [Reserved]The Hedging Agreements, duly executed by the parties thereto;
(exxii) [Reserved];The Excess Cash Flow Participation Agreement, duly executed by Lani▇▇ ▇▇▇ Lani▇▇ ▇▇▇se Participation Corporation; and
(fxxiii) a certificate of a Responsible Officer Such other agreements, instruments, certificates, opinions and other documents as either of the Servicer certifying Co-Agents may reasonably request.
(ib) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement Lani▇▇ ▇▇▇ll have paid any and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except fees required pursuant to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender Fee Letters on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies date of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedAdvance.
Appears in 1 contract
Sources: Credit and Security Agreement (Lanier Worldwide Inc)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial an Advance hereunder shall be on or after the date of this Agreement (an “Initial Advance”) is subject to the satisfaction of the following conditions precedent before or concurrently with the Closing Date:
(a) Before giving effect to the transactions contemplated by this Agreement, there shall have occurred no Material Adverse Change since August 31, 2003.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the Administrative Agent matters described on the Disclosure Schedule (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement, the Note, any other Loan Document or the consummation of the transactions contemplated hereby.
(c) Borrower shall have paid all accrued fees and expenses of Lender which Borrower is required to pay under the Loan Documents (including the accrued, reasonable fees and expenses of counsel to Lender).
(d) Lender shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent:Lender (unless otherwise specified):
(ai) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly The Note payable to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;order of Lender.
(bii) true and complete Certified copies of the Constituent Documents resolutions of the BorrowerBoard of Directors of Borrower approving this Agreement, the Equityholder Note and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or each other action of its member approving this Agreement and the other Facility Documents Loan Document to which it is or is to be a party, and of all documents evidencing other necessary action and governmental and other third party approvals and consents, if any, with respect to the transactions contemplated hereby Advances, this Agreement, the Note and thereby, each other Loan Document.
(iii) that its representations and warranties set forth A copy of the Organizational Documents of Borrower, together with each amendment thereto, and, in the Facility Documents to which it is a party are true and correct in all material respects as case of the certificate of incorporation of Borrower, certified (within ten (10) days of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (ivDate) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with by the Secretary of State of the jurisdiction of its formation or incorporation as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of Delaware the jurisdiction of its formation, dated within ten (10) days of the Closing Date, certifying that (A) Borrower has paid all franchise taxes to the date of such certificate and (B) Borrower is duly incorporated or formed and in good standing under the laws of the State of the jurisdiction of its organization.
(v) A certificate of Borrower, signed on behalf of the Borrower by a duly authorized officer of Borrower, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (B) the absence of any event occurring and continuing, or resulting from any Advance, that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant Secretary of an authorized officer of Borrower certifying the names and true signatures of the officers of Borrower authorized to sign this Agreement, the Note and each other applicable Loan Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vii) A security agreement in form and substance satisfactory to Lender pledging to Lender and granting Lender a security interest in all of Borrower’s right, title and interest in the Collateral described therein (such agreement, as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Security Agreement”), duly executed by Borrower, together with:
(A) acknowledgment copies of proper financing statements, delivered for filing office on or before the Closing Date under the Uniform Commercial Code of such jurisdictions deemed necessary or desirable by Lender, covering the Collateral described in any applicable jurisdiction the Security Agreement,
(B) completed requests for information, dated on or before the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name Borrower as debtor, together with copies of such other financing statements, and
(C) evidence of the Administrative Agent deems completion of all other recordings and filings of or with respect to the Security Agreement that Lender may deem necessary or desirable in order to perfect and protect the interests in the Collateral contemplated by this Agreement;Liens created thereby.
(hviii) copies of proper financing statement amendments (or the equivalent thereof The Custodial Agreement, in any applicable foreign jurisdictionform and substance satisfactory to Lender, as applicable), if any, necessary to release all security interests duly executed by Borrower and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;Custodian.
(iix) legal opinions A favorable opinion of (addressed to each of the Secured PartiesA) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP with respect to the valid existence, due authorization and execution of the Loan Documents by Borrower and (B) Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, special counsel for Borrower, with respect to the Administrative Agentenforceability of the Loan Documents, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect thatcase, in the case of each item of Collateral pledged form satisfactory to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedLender.
Appears in 1 contract
Sources: Credit Agreement (LNR Property Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be pursuant to this Agreement is subject to the conditions condition precedent that the Administrative Agent shall have received received, on or before the Closing Date date of such initial Advance, the following, following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of The Sale Agreement and the Facility Documents (other than the Collateral Agent Fee LetterPurchase and Sale Agreement, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies A certificate of the Constituent Documents Secretary or Assistant Secretary or other appropriate officer of each Loan Party certifying the names and true signatures of the Borrower, the Equityholder officers authorized on its behalf to sign this Agreement and the Servicer other Transaction Documents to be delivered by it hereunder (on which certificate the Agent and the Lenders may conclusively rely until such time as in effect on the Closing DateAgent shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (b));
(c) a certificate The Certificate of Formation or other organizational documents of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of incorporation or organization, as of a Responsible Officer recent date acceptable to the Agent in each case together with a copy of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions by-laws or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as organizational document of such earlier date)Loan Party, (iv) that no Default duly certified by the Secretary or Event an Assistant Secretary of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partysuch Loan Party or other appropriate officer;
(d) [Reserved]Copies of good standing certificates or similar certificates of existence for each Loan Party, issued by the Secretaries of State of the state of incorporation or organization of such Loan Party and the state where such Loan Party's principal place of business is located;
(e) [Reserved]Acknowledgment copies (or other evidence of filing reasonably acceptable to the Agent) of (i) proper financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Originator as debtor and seller of its Receivables and Related Assets, the Seller as the secured party and purchaser thereof and the Agent, as agent for the Secured Parties, as assignee, (ii) financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Seller as debtor and seller of its Receivables and Related Assets, the Borrower as the secured party and purchaser thereof and the Agent, as agent for the Secured Parties, as assignee and (iii) financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Borrower as the debtor and the Agent, as agent for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by the Originator to the Seller and the Seller to the Borrower of, and the Agent's security interest in, the Collateral;
(f) a certificate of a Responsible Officer of Search reports provided in writing to the Servicer certifying Agent (i) listing all effective financing statements that name any Loan Party as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement debtor and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth are filed in the Facility Documents jurisdictions in which filings were made pursuant to subsection (e) above and in such other jurisdictions that the Agent shall reasonably request, together with copies of such financing statements (none of which it is a party are true and correct in all material respects as (other than any of the Closing Date financing statements described in subsection (except e) above or financing statements in favor of the agent pursuant to the extent such representations and warranties expressly relate to Senior Credit Agreement) shall cover any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier dateReceivables or Related Assets), and (ivii) as listing all tax liens and judgment liens (if any) filed against any debtor referred to in clause (i) above in the incumbency jurisdictions described therein and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyshowing no such Liens;
(g) financing statements (or The Seller Note, duly executed by the equivalent thereof in any applicable foreign jurisdictionBorrower and the Initial PCA Note, as applicable) in proper form for filing on duly executed by the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementSeller;
(h) copies A favorable opinion of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary counsel to release all security interests and other rights of any Person Loan Parties admitted to practice in the Collateral previously granted by State of Illinois, covering the Borrower, the Equityholder or any transferormatters set forth in Exhibit 5.1(h);
(i) legal Favorable opinions (addressed to each of the Secured Parties) of counsel to Loan Parties, as to:
(1) the Borrower, existence of a "true sale" of the Equityholder, Receivables from the Servicer, Originator to the Collateral Agent Seller and from the Seller to the Borrower under the Sale Agreement and the CustodianPurchase and Sale Agreement, covering such matters as respectively; and
(2) the Administrative Agent inapplicability of the doctrine of substantive consolidation to the Borrower and its counsel shall reasonably requestthe Originator and to the Borrower and the Seller in connection with any bankruptcy proceeding involving any Loan Party;
(j) evidence reasonably satisfactory to it that all A pro forma Information Package, prepared as of the Covered Accounts shall have been establishedCut-Off Date of October 31, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect2000;
(k) evidence that A report in form and substance satisfactory to the Agent from the Initial Due Diligence Auditor as to a pre-closing due diligence audit by the Initial Due Diligence Auditor;
(il) The Liquidity Agreement, in form and substance satisfactory to the Agent, duly executed by the parties thereto;
(m) With respect to the Performance Guarantor, copies of its most recent reports on SEC Forms 10-K and 10-Q;
(n) The Fee Letter, together with payment of any and all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with date of the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrowerinitial Advance;
(lo) delivery A certificate of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies an Authorized Officer of each of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated Loan Parties certifying that as of the Closing Datedate of the initial Advance, certifying to the effect that, in the case no Event of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower Default or Unmatured Default exists and is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementcontinuing; and
(iiip) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such Such other opinionsagreements, instruments, certificates certificates, opinions and other documents from the Borrower as the Agents or any Lender shall have Agent may reasonably requestedrequest.
Appears in 1 contract
Sources: Credit and Security Agreement (Packaging Corp of America)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its the initial Advance hereunder shall be is subject to satisfaction of the following conditions precedent that the Administrative Agent precedent:
(a) Lender shall have received each of the following documents, duly executed where applicable, each dated on or before prior to the Closing Date the followingDate, in each case, in form and substance reasonably satisfactory to the Administrative AgentLender:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agenti) duly executed counterparts of the Margin Loan Documentation and delivered by the parties theretoall documents contemplated thereby, which shall each be in full force and effectincluding any UCC-1 financing statement(s);
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(cii) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documentseach Loan Party, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of dated the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as executed by an authorized signatory of such earlier date)Loan Party’s general partner or managing member, as applicable, which shall (ivA) that no Default or Event of Default has occurred and is continuing, and (v) as to certify the incumbency and specimen signature of each resolutions of its Responsible Officers authorized to execute general partner, members or other body authorizing the Facility Documents execution, delivery and performance of the Margin Loan Documentation to which it is a party, (B) identify by name and title and bear the signatures of the Responsible Officers and any other officers of such Loan Party authorized to sign the Margin Loan Documentation to which it is a party, and (C) attach the Organization Documents of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party, and, if available, a long form good standing certificate for such Loan Party from its jurisdiction of organization;
(diii) [Reserved];
(eiv) [Reserved]a favorable opinion of (i) special New York counsel to each Loan Party and (ii) Anguilla counsel to each Loan Party, in the case of each clause (i) and (ii), addressed to Lender and in form and substance reasonably satisfactory to it;
(fv) a certificate the results of a Responsible Officer recent lien search in the jurisdiction where Borrower is located within the meaning of the Servicer certifying (i) as to its Constituent DocumentsUCC, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as such search shall reveal no liens on any of the Closing Date (assets of Borrower except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (for liens permitted by Section 6.02 or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender discharged on or prior to the Closing Date pursuant to a pay-off letter or other documentation satisfactory to Lender.
(vi) FRB Form U-1, the portion of which is to be completed by the Borrower shall be completed to satisfaction of Lender and duly executed by Borrower;
(A) audited annual consolidated financial statements of the Borrower from December 31, 2013 and (B) unaudited interim consolidated financial statements of the Borrower for the fiscal quarter ended June 30, 2014, and such financial statements shall not, in the reasonable judgment of Lender, reflect any material adverse change in the consolidated financial condition of the Borrower as reflected in the audited financial statements referred to in clause (A) above (the “Borrower Financial Statements”); and
(viii) such other certificates or documents as Lender reasonably may require.
(b) [Reserved].
(c) The Collateral Account has been established by Borrower, and the Initial Underlying Equity shall have been received credited to the Collateral Account free from all Transfer Restrictions (other than Existing Transfer Restrictions, Permitted Agreements and Trading Policies) by book-entry transfer through DTC, as depositary.
(d) All documented fees required to be paid under the Margin Loan Documentation on or will be received contemporaneously with before the Closing Date; (ii) the reasonable and documented , including counsel fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date Date, shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedpaid.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be pursuant to this Agreement is subject to the following conditions precedent that precedent:
(a) the Administrative Agent Administrator, on behalf of the Secured Parties, shall have received received, on or before the Closing Date date of such initial Advance, the following, following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative AgentAdministrator:
(ai) each The Sale Agreement (Step 3), duly executed by the parties thereto;
(ii) A certificate of the Facility Assistant Secretary of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Administrator and the Lender may conclusively rely until such time as the Administrator, on behalf of the Secured Parties, shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (a)(ii));
(iii) The Articles or Certificate of Formation of each Loan Party, duly certified by the Secretary of State of such Loan Party’s state of formation, as of a recent date acceptable to Administrator, on behalf of the Secured Parties, in each case together with a copy of the by-laws or operating agreement, as applicable, of such Loan Party, duly certified by the Assistant Secretary of such Loan Party;
(iv) Copies of good standing certificates for each Loan Party, issued by the Secretaries of State of the state of formation of such Loan Party and the state where such Loan Party’s principal place of business is located;
(v) Signed copies of (i) proper financing statements (Form UCC-1), in such form as the Administrator may reasonably request, naming the (A) applicable Originator as the debtor and seller of its Receivables and Related Assets, the ▇▇▇▇▇▇ Receivables as the secured party and purchaser thereof and the Administrator, for the benefit of the Secured Parties, as assignee, (B) ▇▇▇▇▇▇ Receivables as the debtor and seller of the Receivables and Related Assets, LTR LLC as the secured party and purchaser thereof and the Administrator, for the benefit of the Secured Parties as Assignee and (C) LTR LLC as the debtor and seller of the Receivables and Related Assets, the Borrower as the secured party and purchaser thereof and the Administrator for the benefit of the Secured Parties as Assignee, and (ii) financing statements (Form UCC-1), in such form as the Administrator may reasonably request, naming the Borrower as the debtor and the Administrator, for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrator desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sales of the Receivables and Related Assets under the Sale Agreements and the Administrator’s security interest in the Collateral;
(vi) Search reports provided in writing to the Administrator, on behalf of the Secured Parties, (i) listing all effective financing statements that name any Originator, the Borrower, or ▇▇▇▇▇▇ Collections as debtor and that are filed in the jurisdictions in which filings were made pursuant to subsection (v) above and in such other jurisdictions that the Administrator shall reasonably request, together with copies of such financing statements (none of which (other than any of the Collateral Agent Fee Letterfinancing statements described in subsection (v) above) shall cover any Receivables or Related Assets, which shall be delivered directly and (ii) listing all tax liens and judgment liens (if any) filed against any debtor referred to in clause (i) above in the Collateral Agentjurisdictions described therein and showing no such Liens;
(vii) Evidence that the Initial Seller Note has been duly executed and delivered by the parties thereto, which shall each be in full force and effectBorrower;
(bviii) true Favorable opinions of King & Spalding and complete copies of the Constituent Documents of the BorrowerMorris, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsJames, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Hitchens & ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative AgentLoan Parties, in connection with substantially the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees form of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the BorrowerExhibit 5.1(a)(viii);
(lix) delivery A favorable opinion of such Collateral (including any promissory noteKing & Spalding, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, counsel to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the BorrowerLoan Parties, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Dateto:
(ix) the Borrower is existence of a “true sale” of the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents Receivables from the Borrower as Originators to the Agents or any Lender shall have reasonably requested.▇▇▇▇▇▇ Receivables under the Sale Agreement (Step 1);
Appears in 1 contract
Sources: Credit and Security Agreement (Lanier Worldwide Inc)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such -68- earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each the Lender to make its initial Advance hereunder shall be under the Credit Facility is subject to the conditions precedent that the Administrative Agent shall have Lender having received on or before the Closing Date the following, each dated as of a date satisfactory to the Lender and in form and substance reasonably satisfactory to the Administrative AgentLender, provided that such condition precedent, being for the sole benefit of the Lender, may be unilaterally waived by it in whole or in part at any time on or before the date of the initial Advance:
(a) each certified copies of the Facility Documents (other than articles and extracts of the Collateral Agent Fee Letterby-laws of the Borrower, which shall be delivered directly FLSCI and each Guarantor relating to the Collateral Agent) duly executed authority to borrow or guarantee and delivered by the parties theretoexecution of documents, which shall each be in full force and effecttogether with a related certificate of non-restriction;
(b) true and complete certified copies of the Constituent Documents resolutions of the board of directors of the Borrower, FLSCI and each Guarantor approving and authorizing the Equityholder execution, delivery and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature performance of each of its Responsible Officers authorized to execute the Facility Documents Loan Document to which it is a party;
(c) a certificate of status or like certificate with respect to the Borrower, FLSCI and each Guarantor issued by the appropriate Governmental Authority of the jurisdiction of its incorporation;
(d) [Reserved]a certificate of a senior officer of the Borrower, FLSCI and each Guarantor, certifying as to the names and true signatures of its officers authorized to sign each Loan Document to which it is a party;
(e) [Reserved]a certificate of a senior officer of the Borrower to the effect that all representations and warranties of the Borrower set forth in Article VIII are true in all material respects as of the initial Drawdown Date;
(f) a certificate of a Responsible Officer senior officer of FLSCI and each Guarantor to the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) effect that all its representations and warranties set forth in the Facility Documents each Loan Document to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyinitial Drawdown Date;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, following Security Documents as applicable) in proper form security for filing on the Closing Date, under the UCC with the Secretary of State payment and performance of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;Obligations:
(i) legal opinions (addressed to each a general security agreement in favour of the Secured Parties) Lender by the Borrower as security for the Obligations granting security interests in all of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request's Assets;
(jii) evidence reasonably satisfactory to it that a guarantee (each a "Required Guarantee") in favour of the Lender by each of FLI and RAI of the Obligations;
(iii) an assignment in favour of the Lender by the Borrower of all of the Covered Accounts shall have been established, Borrower's rights under all Assigned Leases and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated Assigned Leased Property outstanding as of the Closing Date, certifying together with such information and documentation concerning each such Assigned Lease and all Assigned Leased Property and all other Collateral associated therewith as may be reasonably requested by the Lender;
(iv) intercreditor agreement between the Lender, FLSCI and the Borrower providing for subordination and security ranking in respect of any Indebtedness or other Liabilities of the Borrower to FLSCI and Encumbrances granted by the Borrower to FLSCI;
(v) unless incorporated into the Required Guarantees, subordination agreements in favour of the Lender by each of FLI and RAI in respect of any Indebtedness or other Liabilities of the Borrower to either of them;
(vi) a certified copy of or certificate of insurance particulars with respect to, and an assignment of, each of the insurance policies referred to in Section 9.1(c);
(vii) an irrevocable direction (the "IBM Direction") in writing from the Borrower and FLSCI to IBM Canada, acknowledged in writing by IBM Canada, providing (1) that from and after the Closing Date, all payments from IBM Canada to the effect thatBorrower or to FLSCI pursuant to the IBM Leasing Program Agreements shall be paid by IBM Canada into the Borrower's Account, and (2) confirmation by IBM Canada that each of the IBM Leasing Program Agreements is in full force and effect, unamended, and that there is no event of default thereunder;
(h) true copies of all Material Contracts, Assigned Leases and Books and Records requested by the Lender;
(i) a certificate of a senior officer of each Guarantor (1) attaching the most currently available audited, and any later interim unaudited, financial statements of the Guarantor, and (2) in the case of each item FLI, attaching the latest certificate of Collateral pledged an officer of FLI delivered pursuant to section 6.11 of the FLI Credit Agreement;
(j) a Compliance Certificate certifying that no Default or Event of Default shall have occurred and be continuing, with work sheets attached thereto setting forth in reasonable detail the computations necessary to determine whether a Default or an Event of Default specified in Section 10.1(u), (v), (w), (x) or (y) shall have occurred and be continuing;
(k) an opinion of counsel to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior Borrower with respect to the delivery thereof on Borrower, the Closing Date:
(i) Loan Documents to which the Borrower is a party and the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Lienstransactions contemplated thereby;
(iil) an opinion of counsel to FLSCI and each Guarantor with respect to such Person, the Loan Documents to which such Person is a party and the transactions contemplated thereby;
(m) such other certificates and documentation relating to the Borrower, FLSCI and each Guarantor or their respective Assets as the Lender may reasonably request;
(n) results with all aspects of the Lender's review of the Borrower has not assignedand its Affiliates, pledged businesses, Assets and capital structure, the IBM Leasing Program Agreements and the Loan Documents, including, without limitation, the results of searches with respect to outstanding Encumbrances;
(o) true copies of any consent, approval, order, authorization, licence, exemption or otherwise encumbered designation of or by any interest Governmental Authority or other Person required in such Collateral (orconnection with the execution, if delivery or performance of this Agreement or any such interest has been assignedother Loan Document or the incurrence, pledged payment or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementperformance of the Obligations; and
(iiip) upon the grant favourable report of counsel to the Lender with respect to the transactions contemplated by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedLoan Documents.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any USActive 54953942.1755479929.4-80- applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; andand USActive 54953942.1755479929.4-81-
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ares Capital Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be pursuant to the Existing Agreement was subject to the conditions condition precedent that the Administrative Agent shall have received received, on or before the Closing Date date of such initial Advance, the following, following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative Agent:
(a) each Each of the Facility Documents (other than First-Step Receivables Purchase Agreement and the Collateral Agent Fee LetterSale Agreement, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies A certificate of the Constituent Documents Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the Borrower, the Equityholder officers authorized on its behalf to sign this Agreement and the Servicer other Transaction Documents to be delivered by it hereunder (on which certificate the Agent and the Lenders may conclusively rely until such time as in effect on the Closing DateAgent shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (b));
(c) a The articles or certificate of incorporation of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of incorporation, as of a Responsible Officer recent date acceptable to the Agent in each case together with a copy of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as by-laws of such earlier date)Loan Party, (iv) that no Default duly certified by the Secretary or Event an Assistant Secretary of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partysuch Loan Party;
(d) [Reserved]Copies of good standing certificates (or the equivalent) for each Loan Party, issued by the Secretaries of State of the state of incorporation of such Loan Party and the state where such Loan Party's principal place of business is located;
(e) [Reserved];
Acknowledgment copies (for other evidence of filing reasonably acceptable to the Agent) a certificate of a Responsible Officer of the Servicer certifying (i) proper financing statements (Form UCC-1), in such form as to the Agent may reasonably request, naming each of the Originators as debtor and seller of its Constituent DocumentsReceivables and Related Assets, PCC as the secured party, and the Borrower as assignee, (ii) as UCC-3 assignments with respect to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as each of the Closing Date financing statements described in clause (except to i) above naming the extent such representations and warranties expressly relate to any earlier dateAgent, in which case such representations and warranties shall be true and correct in all material respects for the benefit of the Secured Parties, as assignee of such earlier date)the Borrower, and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(giii) financing statements (or Form UCC-1), in such form as the equivalent thereof in any applicable foreign jurisdictionAgent may reasonably request, naming the Borrower as the debtor and the Agent, as applicable) agent for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in proper form for filing on the Closing Date, opinion of the Agent desirable under the UCC with the Secretary or any comparable law of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order all appropriate jurisdictions to perfect the interests in the Collateral contemplated sale by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel Originators to PCC, and by PCC to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedBorrower of, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected 's security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.;
Appears in 1 contract
Sources: Credit and Security Agreement (Precision Castparts Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender the Finance Provider to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent Finance Provider shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative AgentFinance Provider:
(a) each of the Facility Documents Instalment Payment Agreement and the Program Agreements (other than the Collateral Agent Fee LetterAccount Control Agreements), which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents organizational documents of the Borrower, the Equityholder and the Servicer Company as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower Company certifying (i) as to its Constituent Documentsorganizational documents and good standing certificate, (ii) as to its resolutions or other action of its member Board of Directors approving the Instalment Payment Agreement and this Agreement and the other Facility Documents Program Agreements to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents Instalment Payment Agreement and the Program Agreements to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers officers or directors authorized to execute the Facility Documents Instalment Payment Agreement and the Program Agreements to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Delaware Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent Finance Provider deems necessary or desirable in order to perfect the its interests in the Collateral contemplated by this Agreement, the other Program Agreements and the Instalment Payment Agreement;
(he) copies of proper financing statement amendments (the payoff letter, termination letter or similar agreement in relation to the equivalent thereof Indebtedness facility between the Company and [*], duly executed and delivered by such Persons, in any applicable foreign jurisdiction, as applicable), if any, necessary form and substance satisfactory to release all security interests and other rights of any Person the Finance Provider in the Collateral previously granted by the Borrower, the Equityholder or any transferorits sole discretion;
(if) legal opinions (addressed to each of the Secured PartiesFinance Provider) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the CustodianCompany, covering such matters as the Administrative Agent Finance Provider and its counsel shall reasonably request;
(jg) evidence reasonably satisfactory to it the Finance Provider that all of the Covered Accounts each Designated Account shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(kh) evidence that provision of information relating to any reasonable requests made by the Finance Provider for information relating to “know your customer”, anti-money laundering and sanctions rules and regulations requirements; and
(i) all invoiced fees and expenses due and payable to each Lender on or prior to payment of (i) the Closing Date have been received or will be received contemporaneously with the Closing DateUpfront Fee; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Administrative AgentFinance Provider, in connection with the transactions contemplated hereby (to the extent invoiced on or at least one Business Day prior the Closing Date) shall have been paid by the Borrower); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by (in the Borrower;
case of each of clauses (lii) delivery of such Collateral and (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, iii) to the extent received payable by the BorrowerCompany pursuant to Section 8.04(a)), which amounts, in each case, shall be netted against the initial Advance. The Finance Provider acknowledges that each of the conditions specified in this Section 3.01 (except for the condition set forth in the immediately preceding clause (i), which will be satisfied as of the making of the initial Advance) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated satisfied as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Program Side Agreement (CF Finance Acquisition Corp II)
Conditions Precedent to Initial Advance. The obligation of each Lender the Bank to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received each and every one of the following on or before the Closing Date day of such Advance in form and substance satisfactory to the followingBank:
(a) An originally executed copy of this Agreement and each of the other Loan Documents, including but not limited to the Note, Guaranty Agreements, UCC-1 Financing Statements and Landlord Waivers;
(b) A copy of the certificate of incorporation and bylaws of the Borrowers, certified as a true copy of the Secretary or an Assistant Secretary of the Borrowers;
(c) A good standing certificate with respect to the Borrowers issued at a recent date by the Secretary of State of the State of New Jersey;
(d) A certificate of the Secretary or an Assistant Secretary of the Borrowers certifying the names and true signatures of the officers of the Borrowers authorized to sign each of the Loan Documents to which the Borrowers is a party;
(e) A copy of the resolutions approved by the Board of Directors of the Borrowers authorizing the execution, delivery and performance by the Borrowers of each of the Loan Documents to which the Borrowers is a party, certified as a true copy by the Secretary or an Assistant Secretary of the Borrowers;
(f) A written opinion of counsel to the Borrowers;
(g) Evidence reasonably satisfactory to the Bank that the Inventory is properly insured in accordance with the provisions of this Agreement and that the Collateral is not subject to any Lien other than Permitted Liens;
(h) Evidence reasonably satisfactory to the Bank that all filings, recordings and other actions that are necessary or desirable in order to establish and perfect the Bank's security interest in the Collateral as a valid perfected first priority security interest shall have been or shall be duly effected, including, without limitation, the filing of financing statements, the recordation of landlord and/or mortgagee waivers or disclaimers and the filing or recordation of such other documents as the Bank shall deem necessary or desirable, all in form and substance satisfactory to the Bank, and all fees, taxes and other charges relating to such filings and recordings shall have been paid by the Borrowers; and
(i) The expropriation insurance policy required by Section 5.10 herein;
(j) Such other documents and information as the Bank shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee LetterBank, which shall be delivered directly and all legal matters and documents with respect to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties by this Agreement shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of counsel for the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedBank.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Baltek Corp)