Conditions Precedent to Initial Advances. 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 USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement; (d) 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 board of directors or members or other governing body 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) 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; (e) 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 general partner, 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), (iv) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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; (f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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; (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 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, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document 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 Custodian, and shall be in full force and effect; (k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) 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; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon 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; (n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund; (o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested; (p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and (q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Remora Capital Corp)
Conditions Precedent to Initial Advances. 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 USB Fee Letter, which shall be delivered directly to USBNA and USBTC) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies one or more certificates of the Constituent Documents of the Borrower, the Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a one or more Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer Officers of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members or other governing body 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) 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;
(e) 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 general partner, board of directors managers 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), (iv) to the knowledge of the Servicerits knowledge, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) 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;
(fc) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Fund Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members directors approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, and (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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(ge) proper financing statements (or the equivalent thereof statements, in any applicable foreign jurisdiction, as applicable) in proper acceptable form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution Agreement;
(hf) 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 (other than Permitted Liens) of any Person (other than the Collateral Agent) in the Collateral previously granted by the Borrower, the Fund Borrower or any transferor;
(ig) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (i) counsel to the Borrower and the FundEquityholder, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇covering customary corporate matters, counsel substantive nonconsolidation of the Borrower with the Equityholder or the Collateral Manager, the true sale nature of any transfers to the Servicer Borrower of Collateral Loans from the Equityholder, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral AgentManager, covering corporate matters and such other matters as the Administrative Agent and its counsel shall reasonably request, and (iii) counsel to the Collateral Administrator, the Custodian Administrator and the Document Custodian, covering corporate matters and such other matters as the Administrative Agent and its counsel shall reasonably request;
(jh) 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 Custodian, and shall be in full force and effectestablished;
(ki) evidence that (xi) all fees and expenses due and owing to the Administrative Agent, Agent and each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Lender on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) the reasonable and documented fees and expenses of ▇▇▇▇▇ Winston & S▇▇▇▇▇ LLP, counsel to the Administrative Agent Agent, Dentons US LLP, counsel to the Collateral Agent, the Custodian, the Securities Intermediary and the Collateral Administrator, and R▇▇▇▇▇▇ & ▇M▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇ B▇▇▇▇▇ ▇▇▇▇▇▇ PC, counsel to the Servicer Collateral Administrator in connection with the transactions contemplated hereby (to the extent invoiced reasonably prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid by the Borrower.;
(lj) 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 provisions of Article XIV as required under this Agreement shall have been effected;
(mk) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying information required to the effect that, be set forth in the case of each item of Collateral pledged to Borrowing Base Calculation Statement and the Collateral Agent, on the Closing Date and, Monthly Report 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 hard copy and clear of any Liens except for (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) the Borrower has not assigned, pledged EXCEL 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agentcomparable format; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(ol) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund Borrower as the Agents Administrative Agent or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Credit and Security Agreement (FS Investment Corp II)
Conditions Precedent to Initial Advances. The obligation of each Lender to make its initial Advance Advance, and the obligation of each Issuing Bank to issue its initial Letter of Credit, on the occasion of the initial Credit Extension hereunder shall be is subject to the following conditions precedent that the precedent:
(a) The Administrative Agent shall have received on the Notes payable to the order of each of the Lenders, respectively, duly executed by the Borrower.
(b) The Lenders shall be reasonably satisfied with the organizational and legal structure and capitalization of the Borrower and each Subsidiary, including the terms and conditions of (i) the charter, bylaws, partnership agreement and other organizational documents, and each class of capital stock or before other equity interest, of the Closing Date Borrower and each Subsidiary, (ii) of each agreement or instrument relating to such structure (including, without limitation, intercompany tax sharing, cost sharing and management agreements) or capitalization and (iii) existing Debt (including, without limitation, equipment vendor financing) of the Borrower and each Subsidiary. Credit Agreement
(c) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent and CSI (including the accrued fees and disbursements of special New York counsel and special Puerto Rico counsel to the Administrative Agent and CSI).
(d) The Administrative Agent shall have received the following, each dated the date of the initial Borrowing hereunder (unless otherwise specified) in form and substance reasonably satisfactory to the Administrative AgentAgent and in sufficient copies for each Lender:
(ai) With respect to each Credit Party that is a corporation, (A) a copy of the Facility certificate or articles of incorporation, as amended, of such Credit Party, certified by the Secretary of State or other appropriate official of the jurisdiction of its organization as of a date reasonably near the initial Borrowing; (B) a certificate of the Secretary of the Borrower certifying (I) that attached thereto is a true and complete copy of the bylaws of each Credit Party as in effect on the date of such certificate and as in effect at all times since a date prior to the date of the resolutions described in item (II) below, (II) that attached thereto is a true and complete copy of the resolutions adopted by the Board of Directors of each Credit Party authorizing the execution, delivery and performance of such of the Loan Documents (to which such Credit Party is a party, and each other than the USB Fee Letter, document or instrument which shall is to be delivered directly to USBNA by it in connection with this Agreement after the date hereof and USBTC(in the case of the Borrower) duly executed authorizing the Borrowings hereunder, and delivered by the parties theretothat such resolutions have not been modified, which shall each be rescinded or amended and are in full force and effect;
, (bIII) true and complete copies that the certificate or articles of incorporation of the Constituent Documents Credit Parties have not been amended since the date of the Borrower, the Servicer and the Fund as in effect last amendment thereto shown on the Closing Date;
certificate furnished pursuant to clause (cA) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body 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) no Default or Event of Default has occurred and is continuing, above and (vIV) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility officers of each Credit Party executing the Loan Documents to which it such Credit Party is to be a party;
, or any other document or instrument delivered in connection therewith; (eC) a copy of a certificate of a Responsible Officer the Secretary of State of the Servicer jurisdiction of incorporation and the jurisdiction doing business of each Credit Party as of a date reasonably near the initial Borrowing certifying that Credit Agreement
(I) such Credit Party has paid all franchise taxes to the date of such certificate and (II) such Credit Party is duly incorporated, in good standing and authorized to engage in business, as the case may be, under the laws of the applicable jurisdiction; and (D) all documents evidencing other necessary corporate action and governmental and third party consents and approvals, if any, reasonably requested by any Lender through the Administrative Agent.
(ii) With respect to each Credit Party that is a partnership or other entity (other than a corporation), copies of the partnership agreement and other organizational document, together with such proof of authority, as shall be equivalent to those delivered pursuant to the foregoing clause (i) and as to its Constituent Documents, (ii) as to its resolutions shall have been reasonably requested by the Administrative Agent or other action of its general partner, board of directors or members approving this Agreement and any Lender through the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, Administrative Agent.
(iii) that its representations The Subsidiary Guaranty duly executed and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as delivered by each Subsidiary 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), Borrower.
(iv) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) has occurred The Holdings Pledge Agreement duly executed and is continuing, and delivered by Holdings.
(v) as to The Obligor Pledge Agreement duly executed and delivered by the incumbency Borrower and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Lambda Communications, Incorporado.
(fvi) a certificate of a Responsible Officer The Puerto Rico Security Documents required by Section 5.01(n) to be executed and delivered on the date of the Fund certifying (i) as initial Credit Extension duly executed and delivered by each Obligor stated to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members approving this Agreement and the other Facility Documents to which it is be 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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) thereto in proper form for filing, when such filing on the Closing Dateis required by applicable law, under the UCC with the Delaware Secretary of State 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, the Master Purchase Agreement and the Purchase payment of all required documentary stamps, recording fees, taxes and Contribution Agreement;all other costs and expenses relating to the filing and recordation of such Puerto Rico Security Documents.
(hvii) copies A certificate 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 a Financial Officer of any Person in the Collateral previously granted by the Borrower, in substantially the Fund or any transferor;form of Exhibit G, attesting that each of the Borrower and each of its Subsidiaries is Solvent after giving effect to the transactions contemplated hereby.
(viii) A Borrowing Base Certificate as at the date of the initial Borrowing hereunder. Credit Agreement
(ix) A certificate of a Financial Officer of the Borrower as to the matters set forth in clauses (i) legal opinions and (addressed to each of the Secured Partiesii) of ▇▇▇Section 3.02
(a) substantially in the form of Exhibit H hereto.
(x) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇ & ▇▇▇▇▇▇▇▇ ▇▇▇, special New York counsel for the Credit Parties, in form and substance satisfactory to the Administrative Agent (and each Obligor hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(xi) A favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special Puerto Rico counsel for the Credit Parties, in form and substance satisfactory to the Administrative Agent (and each Obligor hereby instructs such counsel to deliver such opinion to the Servicer Lenders and the Administrative Agent).
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special communications counsel to for the Collateral AgentCredit Parties, the Collateral Administrator, the Custodian in form and the Document Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably substance 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent (and each Obligor hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(xiii) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇, counsel for the Administrative Agent, in form and substance satisfactory to the Collateral Administrative Agent (and the Collateral AdministratorAdministrative Agent hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(xiv) A favorable opinion of Fiddler, and Eversheds ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special Puerto Rico counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent (and the Administrative Agent hereby instructs such counsel to deliver such opinion to the Servicer Lenders and the Administrative Agent).
(xv) An acceptance of its appointment as agent for the service of process, in connection with substantially the form of Exhibit K, duly executed and delivered by Centennial Cellular.
(e) The Lenders shall have received evidence Credit Agreement satisfactory to them that all approvals of governmental authorities and regulatory bodies and third party consents (including, without limitation, all Telecommunications Approvals and any consents or approvals from the PRTC) that are necessary or desirable for the execution, delivery and performance by each Credit Party of each Loan Document to which it is a party, the consummation of the transactions contemplated hereby (to thereby and the extent invoiced prior to completion of the Closing Date); build-out, activation and (zoperational capacity of the PCS System contemplated by Section 3.01(f) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid obtained by the BorrowerBorrower and its Subsidiaries, are in full force and effect and have become final.
(lf) delivery of such Collateral (including any promissory note, executed assignment agreements The Lenders shall have received evidence satisfactory to them that the build-out and word or pdf copies activation of the principal credit agreement for each initial Collateral Loan, PCS System has been completed and that the operational capacity of the PCS System is sufficient to provide service to at least 80% of the extent population of Puerto Rico.
(g) The Lenders shall have received by the Borrower) in accordance and be satisfied with the provisions terms and conditions of Article XIV shall have been effected;the Interconnection Agreements, the Facilities Agreement and of each Marketing Agreement.
(mh) a certificate of a Responsible Officer The Borrower will have Contributed Equity on the date of the Borrower, dated as initial Borrowing (after giving effect to any Initial Distribution to be made on such date) 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:not less than $55,000,000.
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the The Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (evidence that, by virtue of the Security Documents, and the filing or its equivalent) registration of all required documents and the taking of all other required action, it shall have for the Borrower, benefit of the Servicer and Lenders a perfected security interest in all of the Fund;Collateral to the extent then required by Section 5.01(n) subject to no equal or prior Lien.
(oj) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender The Administrative Agent shall have reasonably requested;
(p) evidence that received the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of Century-ML Consent and Agreement entered into by the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Codeparties thereto.
Appears in 1 contract
Conditions Precedent to Initial Advances. 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 USB Fee Letter, which shall be delivered directly to USBNA and USBTC) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies one or more certificates of the Constituent Documents of the Borrower, the Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a one or more Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer Officers of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members or other governing body 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) 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;
(e) 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 general partner, board of directors managers 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), (iv) to the knowledge of the Servicerits knowledge, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) 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;
(fc) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Fund Equityholder certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members partner 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) to the knowledge of the Fund, that no Default or Event of Default or Servicing Default has occurred and is continuing with respect to its Purchase and Contribution Agreementcontinuing, 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;
(ge) proper financing statements (or the equivalent thereof statements, in any applicable foreign jurisdiction, as applicable) in proper acceptable form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution Agreement;
(hf) 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 (other than Permitted Liens) of any Person (other than the Collateral Agent) in the Collateral previously granted by the Borrower, the Fund Borrower or any transferor;
(ig) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (i) counsel to the Borrower and the FundBorrower, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPthe Equityholder, covering customary corporate matters, substantive nonconsolidation of the Borrower with the Servicer and the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Loans from the Equityholder, and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Agent, the Collateral Administrator, the Custodian Collateral Agent and the Document Custodian, covering corporate matters and such other matters as the Administrative Agent and its counsel shall reasonably request;
(jh) the Equityholder shall have made (or substantially simultaneously or concurrently with the Closing Date shall make) an equity contribution to the Borrower (or shall be deemed to have made an equity contribution to the Borrower in the consideration of a portion of the purchase price for the initial Collateral Loans as provided in the Sale Agreement) in an amount sufficient, when combined with the proceeds of the initial Advance hereunder, to pay the purchase price for the initial Collateral Loans to be included in the Collateral and all fees and expenses in connection therewith;
(i) 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 Custodian, and shall be in full force and effectestablished;
(kj) evidence that (xi) all fees and expenses due and owing to the Administrative Agent, Agent and each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Lender on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇ LLP, counsel to the Administrative Agent, and of counsel to the Collateral Agent Agent, the Custodian, the Securities Intermediary and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer Administrator in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date)hereby, shall have been paid by the Borrower.;
(lk) 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 provisions of Article XIV as required under this Agreement shall have been effected;
(ml) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying information required to the effect that, be set forth in the case of each item of Collateral pledged to Borrowing Base Calculation Statement and the Collateral Agent, on the Closing Date and, Monthly Report 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 hard copy and clear of any Liens except for (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) the Borrower has not assigned, pledged EXCEL 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agentcomparable format; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(om) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund Borrower as the Agents Administrative Agent or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Credit and Security Agreement (Bain Capital Specialty Finance, Inc.)
Conditions Precedent to Initial Advances. The effectiveness of the Closing Date and the obligation of each Lender to make its initial Advance hereunder shall be subject to the following 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:, the deliverables set forth below or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent):
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body approving this Agreement and the other Facility Documents to which it is a party and Documents;
(c) each of the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents to which it is a party are shall be 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) 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;
(ed) a certificate one or more certificates of a Responsible Officer of each of the Servicer Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action that each of its general partner, 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), (iviii) to the knowledge of the Servicer, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) Default has occurred and is continuing, and (viv) 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;
(fe) a certificate copies of a Responsible Officer favorable UCC, tax, and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and, where applicable, trade names of each of the Fund certifying (i) as to its Constituent DocumentsBorrower, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members approving this Agreement the Collateral Manager and the Equityholder as reasonably requested by the Administrative Agent, in each case, indicating that there are no prior Liens on any of the Collateral other Facility Documents than Permitted Liens and Liens 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 be released on the Closing Date (except acceptable 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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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 partyAdministrative Agent;
(gf) proper financing statements (or the equivalent thereof statements, in any applicable foreign jurisdiction, as applicable) in proper acceptable form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and in any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and such further instruments and such further actions that the Purchase Administrative Agent deems reasonably necessary or desirable in order to maintain and Contribution Agreementprotect the Collateral Agent’s first-priority perfected security interest in the Collateral;
(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 Fund or any transferor;
(ig) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel (including local counsel in any applicable jurisdiction) to the Borrower Borrower, the Collateral Manager and the FundEquityholder, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the Investment Company Act, counsel to the Servicer true sale and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPsubstantive nonconsolidation matters, counsel to perfection of the Collateral Agent, ’s security interest in the Collateral Administrator, the Custodian and the Document Custodian, covering such other matters as the Administrative Agent and its counsel shall reasonably request);
(h) since February 28, 2023, there shall have been no Material Adverse Effect;
(i) the Borrower shall not have any Indebtedness other than the Obligations and any Currency Hedge Transaction expressly required pursuant to Section 5.01(q);
(j) evidence reasonably satisfactory to it that the Borrower shall have Availability of not less than $100,000 as of the Closing Date;
(k) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian, and shall be in full force and effectAgreement;
(kl) evidence reasonably satisfactory to it that (xi) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Agent on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPAgent, of counsel to the Collateral Agent Lenders (subject to the limit set forth in Section 12.04), and of counsel to the Custodian, the Securities Intermediary and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer Administrator in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 Borrower or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received will be paid by the Borrower) in accordance Borrower contemporaneously with the provisions of Article XIV shall have been effectedClosing Date;
(m) a certificate of a Responsible Officer of the Borrower, dated Borrowing Base Certificate prepared pro forma 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder;
(o) the Borrower (or the Collateral Manager on behalf of the Borrower) shall have Delivered to the Custodian all of the Collateral Loan Files for each Closing Date Collateral Loan, with copies to the Administrative Agent, at their respective addresses identified herein;
(p) the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans that all payments shall be made directly to the applicable Collection Account and all Collections received by the Borrower or its Affiliates with respect to the Collateral shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties;
(q) sufficiently in advance of the Closing Date, all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and antiAnti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the FundMoney Laundering Laws;
(or) such other opinions, instruments, certificates and documents from financial information with respect to the Borrower, Borrower or the Servicer and the Fund Equityholder as the Agents an Agent or any a Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 requested as of the Closing Date or earlier;
(s) results of a background check of each Key Person;
(t) completion of all due diligence, site visits and underwriting that Agents and the Lenders deem necessary in their reasonable discretion;
(u) sufficiently in advance of (but in any event not less than three (3) Business Days prior to) the Closing Date, a Beneficial Ownership Certification in relation to the Borrower to the extent it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; and
(qv) such other approvals, documents, opinions, certificates, searches and reports as the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the CodeAdministrative Agent may reasonably request.
Appears in 1 contract
Sources: Credit and Security Agreement (Saratoga Investment Corp.)
Conditions Precedent to Initial Advances. The obligation of each Lender to make its initial Advance hereunder shall be is subject to the following conditions precedent that precedent:
(a) The Administrative Agent shall have received the Notes payable to the order of each of the Lenders, respectively, duly executed by the Borrower.
(b) The Lenders shall be reasonably satisfied with the organizational and legal structure and capitalization of the Borrower and each Subsidiary, including the terms and conditions of the charter, bylaws, partnership agreement and other organizational documents, and each class of capital stock or other equity interest, of the Borrower and each Subsidiary and of each agreement or instrument relating to such structure or capitalization and the amount, parties, terms and conditions of the existing Debt of the Borrower and each such Subsidiary.
(c) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent and CSI (including the accrued fees and disbursements of counsel to the Administrative Agent and CSI).
(d) The Administrative Agent shall have received on or before the Closing Date day of the initial Borrowing the following, each dated the date hereof (unless otherwise specified) in form and substance reasonably satisfactory to the Administrative AgentAgent and in sufficient copies for each Lender:
(ai) With respect to each Obligor that is a corporation, (A) a copy of the Facility certificate or articles of incorporation, as amended, of such Obligor, certified by the Secretary of State or other appropriate official of the jurisdiction of its organization as of a date reasonably near the initial Borrowing; (B) a certificate of the Secretary of the Borrower certifying (I) that attached thereto is a true and complete copy of the bylaws of each Obligor as in effect on the date of such certificate and as in effect at all times since a date prior to the date of the resolutions described in item (II) below, (II) that attached thereto is a true and complete copy of the resolutions adopted by the Board of Directors of each Obligor authorizing the execution, delivery and performance of such of the Loan Documents (to which such Obligor is a party, and each other than the USB Fee Letter, document or instrument which shall is to be delivered directly to USBNA and USBTC) duly executed and Credit Agreement delivered by it in connection with this Agreement after the parties theretodate hereof and (in the case of the Borrower) authorizing the Borrowings hereunder, which shall each be and that such resolutions have not been modified, rescinded or amended and are in full force and effect;
, (bIII) true and complete copies that the certificate or articles of incorporation of the Constituent Documents Obligors have not been amended since the date of the Borrower, the Servicer and the Fund as in effect last amendment thereto shown on the Closing Date;
certificate furnished pursuant to clause (cA) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body 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) no Default or Event of Default has occurred and is continuing, above and (vIV) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility officers of each Obligor executing the Loan Documents to which it such Obligor is to be a party;
(e) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or any other action of its general partner, board of directors document 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 instrument delivered 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) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) has occurred and is continuing, connection therewith; and (vC) as to the incumbency all documents evidencing other necessary corporate action and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members approving this Agreement governmental and the other Facility Documents to which it is a third party consents 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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(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 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, the Master Purchase Agreement and the Purchase and Contribution Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable)approvals, if any, necessary reasonably requested by any Lender through the Administrative Agent.
(ii) With respect to release all security interests each Obligor that is a partnership or other entity (other than a corporation), copies of the partnership agreement and other rights organizational document, together with such proof of authority, as shall be equivalent to those delivered pursuant to the foregoing clause (i) and as shall have been reasonably requested by the Administrative Agent or any Person Lender through the Administrative Agent.
(iii) The Subsidiary Guaranty duly executed and delivered by each Subsidiary of the Borrower that is a Puerto Rico Company or that owns any equity interest in a Minority Owned Entity.
(iv) A certificate of the Collateral previously granted by Chief Financial Officer of the Borrower, in substantially the Fund or any transferor;form of Exhibit E, attesting to the Solvency of the Borrower and the Borrower and its Subsidiaries taken as whole after giving effect to the transactions contemplated hereby.
(iv) legal opinions (addressed to each A favorable opinion of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇ & ▇▇▇▇▇, special New York counsel for the Borrower, in form and substance satisfactory to the Administrative Agent (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(vi) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special Puerto Rico counsel for the Borrower, in form and substance satisfactory to the Administrative Agent (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent). Credit Agreement
(vii) A favorable opinion of ▇▇, counsel to the Servicer and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special communications counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document 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 for the Borrower, the Collateral Agent in form and the Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing substance satisfactory to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under Agent(and the Facility Documents, on or prior Borrower hereby instructs such counsel to deliver such opinion to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable Lenders and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and Agent).
(viii) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel for the Administrative Agent, in form and substance satisfactory to the Servicer in connection with the transactions contemplated hereby Administrative Agent.
(to the extent invoiced prior to the Closing Date); and (ze) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), The Acquisition shall have been paid by the Borrower.
(lor shall be simultaneously) 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) consummated in accordance with the provisions of Article XIV shall have been effected;
(m) a certificate of a Responsible Officer terms 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsAcquisition Agreements, including the PATRIOT Actschedules and exhibits thereto (except for any modifications, supplements or waivers thereof, or written consents or determinations made by any of the parties thereto, each of which shall be reasonably satisfactory to the Majority Lenders), and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 certificate of a senior officer of the Borrower to such effect and to the effect that attached thereto are true and complete copies of the documents delivered in connection with the closing thereunder (or its equivalentto the extent that the Administrative Agent shall have requested the same), together with (in the case of each legal opinion delivered to the Borrower pursuant thereto) for a letter from each Person delivering such opinion authorizing reliance thereon by the Borrower, the Servicer Administrative Agent and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the CodeLenders.
Appears in 1 contract
Conditions Precedent to Initial Advances. The obligation of each Lender Bank to make its initial Advance hereunder shall be on the occasion of the initial Borrowing by each Borrower (including each Borrowing Subsidiary) on or after the Restatement Date is subject to the conditions precedent that (i) all commitment, facility, agency and administrative fees provided for under the Administrative terms of this Agreement, accrued to the date of such initial Advance, shall have been paid by the Company and (ii) the Agent shall have received on or before the Closing Date day of such initial Borrowing the following, each dated such day or within two Business Days prior to such day, or dated as of the Restatement Date in the case of (1) the items specified in (c)(i), (e), and (f)(i), (2) the items specified in (b), (c)(ii), (c)(iii), (d)(ii), and (f) with respect to Ecolab PTY Limited and (3) with respect to the Company, the items specified in items (a), (d)(i) and (g), in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for the Notes) in sufficient copies for each Bank:
(a) each The A Notes of such Borrower payable to the order of the Facility Documents (other than the USB Fee LetterBanks, which shall be delivered directly to USBNA and USBTC) duly executed and delivered by the parties thereto, which shall each be in full force and effect;respectively.
(b) true For the initial Borrowing by each Borrowing Subsidiary, an Election to Participate executed by such Borrowing Subsidiary and complete copies of by the Constituent Documents of the Borrower, the Servicer and the Fund as in effect on the Closing Date;Company.
(c) true and complete Certified copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documentsfor the initial Borrowing by the Company, (ii) as to its the resolutions or other action of its board the Board of directors or members or other governing body Directors of the Company 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 Notes 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) 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;
(e) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, Company; (ii) as to its for the initial Borrowing by each Borrowing Subsidiary, the resolutions or other authorizing action of the Board of Directors or other governing body of such Borrowing Subsidiary approving its general partnerElection to Participate, board this Agreement and the Notes of directors or members such Borrowing Subsidiary, and the resolutions of the Board of Directors of the Company approving this Agreement and the other Facility Documents addition of a Borrowing Subsidiary pursuant to which it is a party the terms of this Agreement; and the transactions contemplated hereby and thereby, (iii) that its representations for the initial Borrowing by each Borrower, all documents evidencing other necessary corporate or other authorizing action and warranties set forth in governmental approvals, if any, with respect to this Agreement and the Facility Documents Notes of such Borrower.
(d) Signed copies of (i) a certificate of the Secretary or an Assistant Secretary or other appropriate officer or representative of such Borrower certifying the names and true signatures of the officers or other representatives of such Borrower authorized to which it sign this Agreement (if the Borrower is the Company), such Borrower's Election to Participate (if the Borrower is a party are Borrowing Subsidiary) and the Notes of such Borrower and the other documents or certificates to be delivered by such Borrower pursuant to this Agreement and (ii) for the initial Borrowing by each Borrower other than the Company, a certificate of the Secretary or an Assistant Secretary or other appropriate officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and correct such Borrower's Election to Participate. The Agent may conclusively rely on each such certificate of such Borrower or of the Company until the Agent shall receive a further certificate of the Secretary or an Assistant Secretary or other representative of such Borrower or of the Company, as the case may be, cancelling or amending the prior certificate of such Borrower or of the Company, as the case may be, and submitting the signatures of the officers or other representatives named in all material respects such further certificate.
(e) A certificate executed by the Treasurer of the Company on behalf of the Company certifying that as of the Closing Date (except to Restatement Date, since December 31, 1996 there has been no material adverse change in the extent such representations and warranties expressly relate to any earlier datebusiness, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)financial condition, (iv) to the knowledge operations, properties or performance of the ServicerCompany and its Subsidiaries, no Servicer Termination Event taken as a whole, or Potential Servicer Termination Event (other than with respect in the ability of the Company to the existence of an Event of Default) has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of perform its Responsible Officers authorized to execute the Facility Documents to which it is a party;obligations under this Agreement or any Note.
(f) a certificate Favorable opinions of a Responsible Officer of the Fund certifying (i) as to its Constituent Documentsfor the initial Borrowing by the Company, the General Counsel of the Company in substantially the form of EXHIBIT E hereto and special counsel for the Company in substantially the form of EXHIBIT F hereto, (ii) as to its resolutions or other action for the initial Borrowing by each Borrowing Subsidiary, counsel for such Borrowing Subsidiary in substantially the form of its general partnerEXHIBIT G hereto, board the General Counsel of directorsthe Company in substantially the form of EXHIBIT H hereto and special counsel for the Company in substantially the form of EXHIBIT I hereto, partners 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 for any initial Borrowing, counsel for the Facility Documents Company or the applicable Borrowing Subsidiary as to which it is a party are true and correct in all material respects such other matters as of any Bank through the Closing Date (except Agent may reasonably request. Such counsel shall be satisfactory 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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;Agent.
(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 A favorable opinion of State 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, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇Sidley & Austin, counsel to for the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Euro-Agent, each Lender, USBNA and USBTC in their respective capacities under substantially the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses form of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid by the BorrowerEXHIBIT J hereto.
(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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Credit Agreement (Ecolab Inc)
Conditions Precedent to Initial Advances. 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 date of such initial Advance the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer Borrower and the Fund Collateral Manager as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors managers or members or other governing body 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) 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;
(e) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, 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), (iv) to the knowledge of the ServicerCollateral Manager, no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) 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;
(f) a closing certificate of a Responsible Officer of from the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members approving this Agreement and Borrower substantially in the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties form 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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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 partyon Exhibit H hereto;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Datecopies of UCC Financing Statements, 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 deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Conditions Precedent to Initial Advances. 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:, the deliverables set forth below or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent):
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body approving this Agreement and the other Facility Documents to which it is a party and Documents;
(c) each of the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth of the Borrower contained in the Facility Documents to which it is a party are shall be 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) 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;
(ed) a certificate one or more certificates of a Responsible Officer of each of the Servicer Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action that each of its general partner, 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), (iviii) to the knowledge of the Servicerits knowledge, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) Default has occurred and is continuing, and (viv) 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;
(fe) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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 dateproper financing statements, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper acceptable 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 deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and such further instruments and such further actions that the Purchase Administrative Agent deems reasonably necessary or desirable in order to maintain and Contribution Agreementprotect the Collateral Agent’s first-priority perfected security interest in the Collateral;
(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 Fund or any transferor;
(if) legal opinions (addressed to each of the Secured Parties) of ▇(i) U.S. counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and material agreements, the Investment Company Act and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇Rule (which, counsel to in the Borrower and case of the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇Rule, counsel to may be a memo in lieu of an opinion)), substantive nonconsolidation of the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPBorrower with the Equityholder, counsel to perfection of the Collateral Agent, ’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Custodian Collateral Agent and the Document Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request;
(g) the Administrative Agent shall have received satisfactory evidence that the Equityholder has deposited $15,000,000 into the Principal Collection Account as an equity contribution to the Borrower;
(h) since December 31, 2018, there shall have been no Material Adverse Effect;
(i) the Borrower shall not have any Indebtedness other than the Obligations;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian, and shall be in full force and effectAgreement;
(k) evidence reasonably satisfactory to it that (xi) all fees and (to the extent invoiced at least two (2) Business Days prior to the Closing Date) expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Agent on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) (to the extent invoiced at least two (2) Business Days prior to the Closing Date) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ ▇& ▇▇▇▇ LLP, counsel to the Administrative Agent Agent, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, of counsel to the Collateral Agent Custodian, the Securities Intermediary and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer Administrator in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date)hereby, shall have been paid by the Borrower.;
(l) delivery of such Collateral at least three (including any promissory note, executed assignment agreements and word or pdf copies of the principal credit agreement for each initial Collateral Loan, 3) Business Days prior to the extent received by Closing Date, a Borrowing Base Calculation Statement prepared as of a date reasonably prior to the Borrower) in accordance with the provisions of Article XIV shall have been effectedClosing Date;
(m) evidence reasonably satisfactory to it that an amount equal to the Unfunded Reserve Required Amount with respect to the Collateral Loans to be acquired on the Closing Date shall have been deposited into the Unfunded Reserve Account;
(n) a solvency certificate reasonably satisfactory to it from an authorized signatory of a Responsible Officer the Borrower and the Equityholder;
(o) the Borrower (or the Collateral Manager on behalf of the Borrower) shall have delivered to the Custodian all of the Loan Files for each Collateral Loan owned by the Borrower at the address identified herein;
(p) the Borrower shall have instructed all Obligors or, dated as if applicable, the administrative agents, on the Collateral Loans that all payments shall be made directly to the Collection Account and all Collections received by the Borrower or its Affiliates with respect to the Collateral shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties;
(q) sufficiently in advance 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and antiAnti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the FundMoney Laundering Laws;
(or) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or sufficiently in advance of (but in any Lender shall have reasonably requested;
event not less than three (p3) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of Business Days prior to) the Closing Date, a Beneficial Ownership Certification in relation to the Borrower to the extent it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; and
(qs) such other approvals, documents, opinions, certificates, searches and reports as the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the CodeAdministrative Agent may reasonably request.
Appears in 1 contract
Sources: Credit and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Conditions Precedent to Initial Advances. The obligation of each Lender Bank to make its initial Advance hereunder shall be on or after the date hereof is subject to the conditions condition precedent that the Administrative Agent shall have received on or before the Closing Date the followingdate of such Advance, each dated on or before such date, in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for the Notes, if any) in sufficient copies for each Bank:
(a) The Notes executed by the Borrower to the order of each of the Facility Documents (other than respective Banks which has requested a Note prior to the USB Fee Letter, which shall be delivered directly to USBNA date hereof and USBTC) duly this Agreement executed and delivered by the parties thereto, which shall each be in full force and effect;Borrower.
(b) true and complete Certified copies of the Constituent Documents resolutions of the BorrowerBoard of Directors, or the Servicer Executive Committee thereof, of the Borrower authorizing the execution of this Agreement and the Fund as in effect on Notes, to the Closing Date;extent such Notes may be requested by the Banks.
(c) true and complete copies certified by a Responsible Officer A certificate of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer Secretary or an Assistant Secretary of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members or other governing body 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 attached thereto are true and correct in all material respects as copies of the Closing Date (except to Certificate of Incorporation and Bylaws of the extent such representations and warranties expressly relate to Borrower, together with 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) no Default or Event of Default has occurred and is continuingamendments thereto, and (vii) as to the incumbency names and specimen signature true signatures of each the officers of its Responsible Officers the Borrower authorized to execute the Facility Documents to which it is a party;
(e) 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 general partner, board of directors or members approving sign 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) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, Notices of Borrowing and (v) as any Notes to be executed by 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 Borrower and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order documents to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution 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 be delivered hereunder by the Borrower, the Fund or any transferor;.
(id) legal opinions (addressed to each An opinion of the Secured Parties) of Will▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇neral Counsel of the Borrower, counsel substantially in the form of Exhibit C hereto and as to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document Custodian, covering such other matters as any Bank through the Administrative Agent and its counsel shall may 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid by the Borrower.
(le) 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 provisions of Article XIV shall have been effected;[Intentionally blank]
(mf) a The financial statements described in Section 4.1(e) hereof.
(g) A certificate of a Responsible from an Authorized Officer of the Borrower, dated as of the Closing Effective Date, certifying to that attached thereto is a true and correct copy of the effect Offer and the Additional Offer Documents and certifying 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) On and as of the Effective Date, and except as otherwise previously disclosed pursuant to the provisions hereof, there does not exist any judgment, order, injunction or other restraint issued or filed with respect to the making of Advances or which could reasonably be expected to impair materially the right or ability of Borrower is to effect the owner Acquisition substantially in accordance with the terms and conditions of such Collateral free the Offer and clear to comply with the requirements of any Liens except for (ASection 5.1(e) those which are being released on the Closing Date and (B) Permitted Lienshereof;
(ii) The Offer, at the Borrower has acquired its ownership time of the mailing thereof to the shareholders of Target, and any documents, at the time of mailing thereof, mailed to Target shareholders in such Collateral relation to any Acquisition Agreement did not contain any untrue statement of a material fact or omit to state any material fact necessary in good faith without notice order to make the statements therein contained, in light of any adverse claimthe circumstances under which made, except as described in clause (i) abovenot misleading;
(iii) the The Borrower has not assigned, pledged or otherwise encumbered any interest received all governmental and third party approvals necessary in connection with the Acquisition and the financing contemplated by this Agreement and 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;approvals are in full force and effect; and
(iv) Shares of stock issued by the Borrower has full right to grant a security interest in and assign and pledge such Collateral Target which have been tendered pursuant to the Collateral Agent; and
(v) upon grant Offer and have not been withdrawn, when aggregated with shares owned by the Borrower, constitute more than 50% of the Collateral Agent has a first priority perfected security interest shares of the Target.
(h) A certificate of an officer of the Borrower stating the respective ratings by each of S&P and Mood▇'▇ ▇▇ the senior unsecured long-term debt of the Borrower as in effect on the Collateral, except Permitted Liens or as permitted by date of this Agreement;.
(ni) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsThe Administrative Agent, including the PATRIOT ActSyndication Agent, the Documentation Agent, the Arranger and the Administrative Agent Banks shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrowerall fees and other amounts due and payable pursuant to any letter agreement in regard to fees, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents this Agreement or any Lender shall have reasonably requested;
other Loan Document, including, to the extent invoiced, reimbursement or payment of expenses (p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.including
Appears in 1 contract
Conditions Precedent to Initial Advances. The effectiveness of this Agreement and the obligation of each Lender of the Banks to make its initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent shall have received on or at least two (2) Business Days before the Closing Date day of such Advance the following, each dated the day of such Advance, in form and substance reasonably satisfactory to the Administrative AgentAgent and the Banks:
(a) each of This Agreement and the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) duly executed and delivered by the parties thereto, which shall each be in full force and effect;Notes,
(b) true and complete Certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements which name the Constituent Documents Borrower (under its present name and any previous name) as debtor and which are filed in the office of the BorrowerArkansas Secretary of State, the Servicer and the Fund as in effect on the Closing Date;together with copies of such financing statements,
(c) true and complete copies Copies, certified by a Responsible the Secretary, Assistant Secretary, or Chief Financial Officer of each Loan Party of the Borrower resolutions of the Board of Directors of such Loan Party approving each Loan Document to which it is a party, and of all Governmental Authorizations, Private Authorizations documents evidencing other necessary corporate action and Governmental Filingsgovernmental approvals, if any, required in connection with the transactions contemplated by this Agreement;respect to such Loan Document, including, without limitation, certificates of good standing and certified copies of each Loan Party's Certificate of Incorporation and Bylaws,
(d) a A certificate of a Responsible the Secretary, Assistant Secretary or Chief Financial Officer of Borrower, dated as of the Borrower date of the initial Advance, certifying (i) that no Event of Default exists on the date of, or will exist as to its Constituent Documentsa result of, the initial Advance; (ii) that the representations and warranties in Section 5.01 are true and correct as of and immediately after the initial Advance; (iii) that the Borrower has performed and complied with all agreements and conditions required to its resolutions be performed or other action complied with it prior to or on the date of its board the initial Advance; and (iv) the names and true signatures of directors or members or other governing body approving this Agreement and the other Facility Documents officers of Borrower authorized to sign each Loan Document 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 other documents to which be delivered by 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) 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;hereunder,
(e) a certificate A favorable opinion of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, 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), (iv) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(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 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, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇Messrs. ▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇▇, counsel for the Loan Parties, in substantially the form of Exhibit C and as to the Collateral Agent, the Collateral Administrator, the Custodian and the Document Custodian, covering such other matters as the Administrative Agent and its counsel shall Banks may reasonably request;, and
(jf) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established and the Account Control Agreement shall have been The Agency Fee Letter, duly executed and delivered by the Borrower, the Collateral Agent and the Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing Borrower to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Conditions Precedent to Initial Advances. The obligation of each Lender Bank to make its initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent shall have received on or before the Closing Date day of the initial Borrowing the following, each dated such day, in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for the Notes) in sufficient copies for each Bank:
(a) The Notes, duly executed by the Borrower and payable to the order of each Bank.
(b) This Agreement, duly executed by the Borrower.
(c) The Security Agreement, duly executed by the Borrower, the Agent, the Banks and the Bank Collateral Agent.
(d) The Pledge Agreement, duly executed by First Investors and the Agent.
(e) A copy of the Facility Documents (other than Servicing Agreement, in form and substance acceptable to the USB Fee Letter, which shall be delivered directly to USBNA Agent and USBTC) duly executed by the Borrower and delivered the Servicer.
(f) A copy of the Purchase Agreement, duly executed by the parties thereto, which shall each be in full force and effect;.
(bg) true and complete copies A certificate of the Constituent Documents Secretary of the Borrower, the Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer each of the Borrower of all Governmental Authorizationsand First Investors, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Borrower certifying (i1) as to its Constituent Documents, (ii) as to its resolutions or other action the names and true signatures of its board of directors or members or other governing body approving this Agreement officers authorized to sign each Loan Document and the other Facility Documents Receivables Document to which it is a party and the transactions contemplated hereby notices and thereby, (iii) that its representations and warranties set forth in the Facility Documents other documents to which be delivered by 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 pursuant to any earlier date, such Loan Document or Receivables Document; (2) its By-laws and Articles or Certificate of Incorporation as in which case such representations and warranties shall be true and correct in all material respects as effect on the date of such earlier date)certification; and (3) the resolutions of its Board of Directors approving and authorizing the execution, (iv) no Default or Event of Default has occurred and is continuingdelivery, and (v) as to the incumbency and specimen signature performance by it of each of its Responsible Officers authorized to execute the Facility Documents Loan Document and Receivables Document to which it is a party;
(e) a certificate of a Responsible Officer of , the Servicer certifying (i) as notices and other documents to its Constituent Documentsbe delivered by it pursuant to any such Loan Document or Receivables Document, (ii) as to its resolutions or other action of its general partner, 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), (iv) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(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 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, the Master Purchase Agreement and the Purchase and Contribution Agreement;thereunder.
(h) copies Certificates of proper financing statement amendments appropriate officials as to the existence and good standing of (i) the Borrower in its jurisdiction of incorporation and any and all other jurisdictions where the Property owned 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 business transacted by the Borrower, Borrower requires the Fund or any transferor;Borrower to be qualified therein and where the failure to be so qualified would have a Material Adverse Effect and (ii) each of FIARC and First Investors in its jurisdiction of incorporation.
(i) legal opinions (addressed to each A favorable opinion of Buck, Keenan & Owens, L.L.P., counsel for the Secured Parties) of ▇▇▇▇▇Borrower, FIARC and Fi▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Funds, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel antially in the form of EXHIBIT G hereto and as to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document Custodian, covering such other matters as any Bank through the Administrative Agent and its counsel shall may reasonably request;.
(j) evidence reasonably Acknowledgment copies of proper Financing Statements (Form UCC-1), duly filed on or before the Closing Date, naming the Borrower as the debtor and the Bank Collateral Agent 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 of all appropriate jurisdictions or any comparable law to perfect the Agent's and the Banks' security interests in all Receivables and related security and the Collateral Account in which an interest may be assigned under the Security Agreement.
(k) Certified copies of Requests for Information or Copies (Form UCC-11) (or a similar search report certified by a party acceptable to the Agent), dated on or before the Closing Date, listing all effective financing statements which name the Borrower, FIARC or First Investors (under its present name and any previous name) as debtor and which are filed in the jurisdictions in which filings were made pursuant to subsection (o) of this Section 4.01, together with copies of such financing statements.
(l) The ALPI Insurance, the GAP Insurance, and the VSI Insurance are in form and substance satisfactory to it that all of the Covered Accounts Agent and the Agent shall have been established named as an additional insured with respect thereto.
(m) A copy of each of the Enterprise Agreement and the Account Control Agreement shall have been other documents contemplated thereby, duly executed and delivered by the Borrowerparties thereto, in form and substance satisfactory to the Collateral Agent and the Custodian, and shall be in full force and effect;Banks.
(kn) evidence There shall not have occurred a material adverse change since April 30, 2000 in the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or in the facts and information regarding such entities as represented to date.
(o) The absence of any action, suit, investigation or proceeding pending in any court or before any arbitrator or governmental authority that (x) all fees purports to affect any transaction contemplated hereby, or that could have a material adverse effect on the Borrower or its Subsidiaries or any transaction contemplated hereby or on the ability of the Borrower and expenses due and owing its Subsidiaries to the Administrative Agent, each Lender, USBNA and USBTC in perform their respective capacities obligations under the Facility Documents, on or prior documents to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer executed in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid by the BorrowerFacility.
(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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that The absence of any material disruption of or a material adverse change in conditions in the Fund has received funding commitments financial, banking or capital markets which the Agent and Banc of America Securities LLC, in an aggregate amount equal to or exceeding $100,000,000 as their sole discretion, deem material in connection with the syndication of the Closing Date; andFacility.
(q) Except as otherwise disclosed and consented to by the Servicer has elected Banks, the Borrower and its Subsidiaries shall be in compliance with all existing material financial obligations.
(r) Payment of compensation due to be regulated the Banks, the Agent, and Banc of America Securities LLC.
(s) Such other documents and instruments with respect to the transactions contemplated hereby as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the CodeAgent may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (First Investors Financial Services Group Inc)
Conditions Precedent to Initial Advances. 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 date of such initial Advance the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer Borrower and the Fund Collateral Manager as in effect on the Closing Funding Effective Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body 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) 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;
(e) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, 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), (iv) to the knowledge of the ServicerCollateral Manager, no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) 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;
(f) a certificate of a Responsible Officer of the Fund BDC certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the FundBDC, no Default or Event of Default has occurred and is continuing with respect to its the Purchase and Contribution Agreement, 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;
(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 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, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Conditions Precedent to Initial Advances. The effectiveness of this Agreement and of the obligation of each Lender hereunder to make its initial Advance hereunder shall be subject to the conditions precedent that receipt in satisfactory form or waiver by the Administrative Agent shall have received on or before of the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentfollowing conditions precedent:
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund Guarantor as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer date of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(dc) a certificate of a Responsible Officer of the Borrower Borrower, certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members or other governing body 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) no Early Amortization Event, Unmatured Event of WEIL:\99621584\14\35899.0654 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;
(ed) a certificate of a Responsible Officer or secretary of ACV Capital LLC, in its capacities as the Servicer and the Seller, certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, 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 the representations and warranties of ACV Capital LLC 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) to the knowledge of the Servicerthat no Early Amortization Event, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an Unmatured Event of Default) 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;
(fe) a certificate of a Responsible Officer or secretary of the Fund Parent certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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 the representations and warranties of the Parent 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) to the knowledge that no Early Amortization Event, Unmatured Event of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreementcontinuing, 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;
(gf) financing statements (statements, duly filed on or before the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Datedate of this Agreement, under the UCC with in each jurisdiction necessary to perfect the Delaware Secretary security interest of State 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 Collateral, as contemplated by this Agreement, ;
(g) completion of “Know Your Customer” procedures customary for a transaction of this type and reasonably requested by the Master Purchase Agreement Administrative Agent and the Purchase and Contribution Agreementany Lender;
(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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇one or more firms of counsel to the Borrower, the Seller, the Servicer and the Parent in form and substance acceptable to the Administrative Agent and its counsel with respect to (i) enforceability, corporate power, due authorization, execution and delivery and legal, valid and binding obligation, in each case, in respect of the Facility Documents, (ii) certain UCC matters, including validity and perfection of security interests created pursuant to the Facility Documents, (iii) no consents or approvals, (iv) no conflict with Applicable Law or material documents, (v) Investment Company Act (vi) true sale and non-consolidation of the Borrower and (vii) any other opinions customary for a transaction of this type or reasonably requested by the Administrative Agent and its counsel;
(i) evidence reasonably satisfactory to it that the Collection Account shall have been established; WEIL:\99621584\14\35899.0654
(j) evidence that (x) all fees or original issue discount, as applicable, to be received by the Administrative Agent and each Lender on or prior to the date of the initial Advance pursuant to the Lender Fee Letter; and (y) the accrued reasonable and documented out-of-pocket and third party fees and expenses of the Administrative Agent and the Lenders associated with the review, preparation, execution and delivery of the Facility Documents and the closing of the transactions contemplated hereby and thereby; and the reasonable and documented fees and expenses of ▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date)hereby, 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 in each initial Collateral Loancase, to the extent received by the Borrower) in accordance with the provisions of Article XIV shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying such fees and expenses were invoiced 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 Borrower at least two (i2) through (iii) below, immediately Business Days 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agentdate; and
(vk) upon grant any other deliverable that is customary for a transaction of this type and reasonably requested 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the CodeAgent.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (ACV Auctions Inc.)
Conditions Precedent to Initial Advances. 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 USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body 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) 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;
(e) 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 general partner, board of directors managers 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), (iv) to the knowledge of the Servicerits knowledge, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) 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;
(fc) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Fund Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members directors 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) to the knowledge of the Fund, that no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreementcontinuing, 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;
(ge) proper financing statements (or the equivalent thereof in any applicable foreign jurisdiction), as applicable) in proper form for filing duly filed on or before the Closing Date, under the UCC with the Delaware Secretary of State State, Division of Corporations 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, the Master Purchase Agreement and the Purchase and Contribution Agreement;
(hf) 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 Fund Borrower or any transferor;
(ig) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (i) counsel to the Borrower and the FundEquityholder, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇covering customary corporate matters, substantive nonconsolidation of the Borrower with the Equityholder or the Collateral Manager, the true sale nature of any transfers to the Borrower of Collateral Loans from the Equityholder, and such other matters as the Administrative Agent and its counsel shall reasonably request, (ii) U.S. counsel to the Servicer Collateral Manager, covering corporate matters and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPsuch other matters as the Administrative Agent and its counsel shall reasonably request, and (iii) U.S. counsel to the Collateral Agent, the Collateral Administrator, the Custodian Administrator and the Document Custodian, covering corporate matters and such other matters as the Administrative Agent and its counsel shall reasonably request;
(jh) 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 Custodian, and shall be in full force and effectestablished;
(ki) evidence that (xi) all fees and expenses due and owing to the Administrative Agent, Agent and each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Lender on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) the reasonable and documented fees and expenses of ▇▇▇▇▇ Winston & S▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPAgent, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid by the Borrower.;
(lj) 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 provisions of Article XIV as required under this Agreement shall have been effected;
(mk) 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 clause (i) through (iiiiv) below, after giving effect to the transactions contemplated on the Closing Date, 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 or claims of any nature whatsoever except for (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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 AgreementLiens;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(nl) all documentation and other the information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including to be set forth in the PATRIOT Act, Borrowing Base Calculation Statement and the Administrative Agent shall have received Monthly Report in hard copy and in EXCEL or a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;comparable format; and
(om) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund Borrower as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Conditions Precedent to Initial Advances. The obligation of each Lender Bank to make its initial Advance hereunder shall be on or after the date hereof is subject to the conditions condition precedent that the Administrative Agent shall have received on or before the Closing Date the followingdate of such Advance, each dated on or before such date, in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for the Notes, if any) in sufficient copies for each Bank:
(a) The Notes executed by the Borrower to the order of each of the Facility Documents (other than respective Banks which has requested a Note prior to the USB Fee Letter, which shall be delivered directly to USBNA date hereof and USBTC) duly this Agreement executed and delivered by the parties thereto, which shall each be in full force and effect;Borrower.
(b) true and complete Certified copies of the Constituent Documents resolutions of the BorrowerBoard of Directors, or the Servicer Executive Committee thereof, of the Borrower authorizing the execution of this Agreement and the Fund as in effect on Notes, to the Closing Date;extent such Notes may be requested by the Banks.
(c) true and complete copies certified by a Responsible Officer A certificate of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer Secretary or an Assistant Secretary of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members or other governing body 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 attached thereto are true and correct in all material respects as copies of the Closing Date (except to Certificate of Incorporation and Bylaws of the extent such representations and warranties expressly relate to Borrower, together with 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) no Default or Event of Default has occurred and is continuingamendments thereto, and (vii) as to the incumbency names and specimen signature true signatures of each the officers of its Responsible Officers the Borrower authorized to execute the Facility Documents to which it is a party;
(e) 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 general partner, board of directors or members approving sign 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) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, Notices of Borrowing and (v) as any Notes to be executed by 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 Borrower and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order documents to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution 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 be delivered hereunder by the Borrower, the Fund or any transferor;.
(id) legal opinions (addressed to each An opinion of the Secured Parties) of William G. von Glahn, General C▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇er, counsel substantially in the form of Exhibit C hereto and as to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document Custodian, covering such other matters as any Bank through the Administrative Agent and its counsel shall may 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid by the Borrower.
(le) 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 provisions of Article XIV shall have been effected;[Intentionally blank]
(mf) a The financial statements described in Section 4.1(e) hereof.
(g) A certificate of a Responsible from an Authorized Officer of the Borrower, dated as of the Closing Effective Date, certifying to that attached thereto is a true and correct copy of the effect Offer and the Additional Offer Documents and certifying 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) On and as of the Effective Date, and except as otherwise previously disclosed pursuant to the provisions hereof, there does not exist any judgment, order, injunction or other restraint issued or filed with respect to the making of Advances or which could reasonably be expected to impair materially the right or ability of Borrower is to effect the owner Acquisition substantially in accordance with the terms and conditions of such Collateral free the Offer and clear to comply with the requirements of any Liens except for (ASection 5.1(e) those which are being released on the Closing Date and (B) Permitted Lienshereof;
(ii) The Offer, at the Borrower has acquired its ownership time of the mailing thereof to the shareholders of Target, and any documents, at the time of mailing thereof, mailed to Target shareholders in such Collateral relation to any Acquisition Agreement did not contain any untrue statement of a material fact or omit to state any material fact necessary in good faith without notice order to make the statements therein contained, in light of any adverse claimthe circumstances under which made, except as described in clause (i) abovenot misleading;
(iii) the The Borrower has not assigned, pledged or otherwise encumbered any interest received all governmental and third party approvals necessary in connection with the Acquisition and the financing contemplated by this Agreement and 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;approvals are in full force and effect; and
(iv) Shares of stock issued by the Borrower has full right to grant a security interest in and assign and pledge such Collateral Target which have been tendered pursuant to the Collateral Agent; and
(v) upon grant Offer and have not been withdrawn, when aggregated with shares owned by the Borrower, constitute more than 50% of the Collateral Agent has a first priority perfected security interest shares of the Target.
(h) A certificate of an officer of the Borrower stating the respective ratings by each of S&P and Moody's of the senior unsecured ▇▇▇▇-▇erm debt of the Borrower as in effect on the Collateral, except Permitted Liens or as permitted by date of this Agreement;.
(ni) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsThe Administrative Agent, including the PATRIOT ActSyndication Agent, the Documentation Agent, the Arranger and the Administrative Agent Banks shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrowerall fees and other amounts due and payable pursuant to any letter agreement in regard to fees, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents this Agreement or any Lender shall have reasonably requested;
other Loan Document, including, to the extent invoiced, reimbursement or payment of expenses (pincluding reasonable fees, charges and disbursements of counsel) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected required to be regulated as a “business development company” within reimbursed or paid by the meaning of the Investment Company Act and qualifies as a RIC under the CodeBorrower hereunder.
Appears in 1 contract
Conditions Precedent to Initial Advances. 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:, the deliverables set forth below or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent):
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body approving this Agreement and the other Facility Documents to which it is a party and Documents;
(c) each of the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth of the Borrower contained in the Facility Documents to which it is a party are shall be 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) 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;
(ed) a certificate one or more certificates of a Responsible Officer of each of the Servicer Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action that each of its general partner, 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), (iviii) to the knowledge of the Servicerits knowledge, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) Default has occurred and is continuing, and (viv) 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;
(fe) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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 dateproper financing statements, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper acceptable form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and such further instruments and such further actions that the Purchase Administrative Agent deems reasonably necessary or desirable in order to maintain and Contribution Agreementprotect the Collateral Agent’s first-priority perfected security interest in the Collateral, provided that to the extent any security interest in the Collateral or any deliverable related to the perfection of security interests in the Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement) is not or cannot be provided and/or perfected on the Closing Date (x) without undue burden or expense or (y) after the Borrower’s use of commercially reasonable efforts to do so, then the provision and/or perfection of such security interest(s) or deliverable(s) shall not constitute a condition precedent to the availability of the initial Advance on the Closing Date but shall be required to be delivered after the Closing Date in accordance with Section 5.01(n);
(hf) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction) and, as if applicable), release letters, if any, necessary to release all security interests and other rights (other than Permitted Liens) of any Person (other than the Collateral Agent) in the Collateral previously granted by the Borrower, the Fund Borrower or any transferor;
(ig) legal opinions (addressed to each of the Secured Parties) of ▇▇(i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered laws and non-contravention with organizational documents and material agreements, the Investment Company Act and the V▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇Rule), counsel to substantive nonconsolidation of the Borrower with the Collateral Manager and the FundEquityholder, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to perfection of the Collateral Agent, ’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Custodian Collateral Agent and the Document Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request;
(h) the Equityholder shall have made (or substantially simultaneously or concurrently with the Closing Date shall make) an equity contribution to the Borrower (or shall be deemed to have made an equity contribution to the Borrower in the form of the payment of a portion of the Purchase Price for the initial Collateral Loans) in an amount sufficient, when combined with the proceeds of the initial Advance hereunder, to pay the purchase price for the initial Collateral Loans to be included in the Collateral and all fees and expenses in connection therewith;
(i) since December 31, 2016, there shall have been no Material Adverse Effect;
(j) evidence reasonably satisfactory after giving effect to it that the transactions contemplated in connection herewith, the Borrower shall not have any Indebtedness other than the Obligations;
(k) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian, and shall be in full force and effectAgreement;
(kl) evidence reasonably satisfactory to it that (xi) all fees and (to the extent invoiced at least two (2) Business Days prior to the Closing Date) expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Agent on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) (to the extent invoiced at least two (2) Business Days prior to the Closing Date) the reasonable and documented fees and expenses of ▇▇▇▇▇ Winston & S▇▇▇▇▇ LLP, counsel to the Administrative Agent Agent, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, of counsel to the Collateral Agent Custodian, the Securities Intermediary and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer Administrator in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date)hereby, 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 provisions of Article XIV shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of at least three (3) Business Days prior to the Closing Date, certifying to the effect that, in the case a Borrowing Base Calculation Statement prepared as 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 a date reasonably 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation evidence reasonably satisfactory to it that an amount equal to the Unfunded Reserve Required Amount with respect to the Collateral Loans to be acquired on the Closing Date shall have been deposited into the Unfunded Reserve Account;
(o) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, Equityholder;
(p) the Lenders and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 Notice of Borrowing with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.02, certified by a Responsible Officer of the Borrower (or its equivalent) for the Collateral Manager on behalf of the Borrower), demonstrating that immediately after the making of such initial Advance, each of the Coverage Tests, the Servicer Collateral Quality Test and the FundConcentration Limitations shall be satisfied;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within Borrower (or the meaning Collateral Manager on behalf of the Investment Company Act Borrower) shall have delivered to the Custodian all of the Loan Files for each Collateral Loan owned by the Borrower at the address identified herein; and
(r) the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans that all payments shall be made directly to the Collection Account and qualifies as a RIC under all Collections received by the CodeBorrower or its Affiliates with respect to the Collateral shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties.
Appears in 1 contract
Sources: Credit and Security Agreement (CION Investment Corp)
Conditions Precedent to Initial Advances. 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 date of such initial Advance the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund Borrower as in effect on the Closing Funding Effective Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this AgreementAgreement (other than any Governmental Filings required to be filed by the Parent, or appropriate for it to file, under the Securities Exchange Act of 1934 and/or the Securities Act of 1933);
(d) 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 board of directors or members or other governing body 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) 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;
(e) a certificate of a Responsible Officer of each of the Guarantors, the Servicer and the Originator, certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors directors, partners 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), (iv) to the knowledge no Default, Event of the ServicerDefault, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to Event, Servicer Termination Event, or default under the existence of an Event of Default) Purchase and Contribution Agreement has occurred and is continuingcontinuing with respect to, 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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 partyintentionally omitted;
(g) UCC financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Datestatements, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction all jurisdictions that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable)statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Fund Borrower or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇(A) Platte Klarsfeld & L▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇LLP, counsel to the Servicer Borrower, the Servicer, and the Guarantors (other than Parent), O’▇▇▇▇▇▇ & M▇▇▇, P.C., counsel to the Parent, covering such matters as the Administrative Agent and its counsel shall reasonably request, and (B) C▇▇▇▇▇▇ and C▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document CustodianBackup Servicer, 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 Collection Account shall have been established established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Administrative Agent and the CustodianAccount Bank, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA Agent and USBTC in their respective capacities under the Facility DocumentsBackup Servicer, on or prior to the Closing Funding Effective Date have been received or will be received contemporaneous with closing; and (y) the reasonable and documented accrued fees and expenses of T▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the Administrative Agent Agent, and C▇▇▇▇▇▇ & ▇and C▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral AdministratorBackup Servicer, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); Funding Effective Date and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under to be paid by the USB Fee Letter that are invoiced at least one Business Day prior to the Closing DateBorrower hereunder), shall have been paid by the Borrower.Borrower or will be contemporaneous with closing;
(l) delivery audited consolidated financial statements of Parent as of December 31, 2017, and the unaudited interim consolidated financial statements of Parent as of March 31, 2018, for the three (3) months then ended;
(m) Delivery of such Collateral (including any promissory noteincluding, for each initial Collateral Loan, the related Loan Note and Assignment of Note, Mortgage and Assignment of Mortgage executed in blank with respect to a First Lien Loan, executed assignment agreements agreements, underwriting memo, appraisal report with respect to the related Project Property, and word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borroweragreement) in accordance with the provisions of Article XIV XIII shall have been effected, and Administrative Agent shall have received a Custodial File Document Receipt Certificate that does not show any Exceptions, except for such Exceptions as Administrative Agent may approve in its sole discretion;
(mn) 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 Administrative Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, and 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 Liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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 interests permitted by or interests granted pursuant to this Agreement;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Administrative Agent; and
(v) upon grant by the Borrower, the Collateral Administrative Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement;
(no) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act, ; and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer each Guarantor, and the FundServicer;
(op) a closing certificate from the Borrower substantially in the form set forth on Exhibit H hereto;
(q) such other opinions, instruments, certificates and documents from the Borrower, the Servicer Servicer, and the Fund each Guarantor as the Agents Administrative Agent or any Lender shall have reasonably requested;
(pr) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as copies of the Closing DateUnited States Internal Revenue Service forms required by Section 15.03(g) of this Agreement; and
(qs) a statement of any pending or threatened litigation or legal actions against the Servicer has elected to Borrower, the Servicer, or any Guarantor (provided that in the case of Parent, such statement may be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Codethat there is no material pending or threatened litigation or legal actions against Parent).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Newtek Business Services Corp.)
Conditions Precedent to Initial Advances. The obligation of each Lender to make its initial Advance hereunder shall be is subject to the conditions condition precedent that on or before the date of such Advance:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the same date (except for the financial statements and information referred to in paragraphs (iv) and (v) below), in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for any Note) with one copy for each Lender:
(ai) each of the Facility Documents (other than the USB Fee LetterAny Note requested by a Lender pursuant to Section 2.16, which shall be delivered directly to USBNA duly completed and USBTC) duly executed and delivered by the parties thereto, which shall Borrower and payable to the order of each be in full force and effectsuch Lender;
(bii) true and complete Certified copies of the Constituent Documents resolutions of the Borrower, the Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer Board of Directors of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body approving this Agreement and the other Facility Loan Documents to which it is, or is to be, a party and of all documents evidencing any other necessary corporate action with respect to this Agreement and such Loan Documents;
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign each Loan Document to which the Borrower is, or is to become, a party and the transactions contemplated hereby and thereby, other documents to be delivered hereunder; (iiiB) that its representations and warranties set forth in the Facility Documents to which it is a party attached thereto are true and correct in all material respects as copies of the Closing Date (except to charter and the extent such representations and warranties expressly relate to any earlier dateCode of Regulations of the Borrower, in which each case as in effect on such representations date; and warranties shall be (C) that attached thereto are true and correct in copies of all material respects as governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of such earlier date), (iv) no Default or Event of Default has occurred this Agreement and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents other Loan Document to which it the Borrower is, or is to become, a party;
(eiv) a Copies of the consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 2002, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, certified by PricewaterhouseCoopers LLP, and the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as of March 31, 2003 and related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the three month period then ended;
(v) A certificate of a Responsible Officer an officer of the Servicer Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or members approving this Agreement and that 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 contained in the Facility Documents to which it is a party Section 4.01 hereof are true and correct in all material respects as of the Closing Date (except to the extent such representations on 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) to the knowledge of the Servicer, date and that no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default event has occurred and is continuing with respect to its Purchase and Contribution Agreement, and (v) as to that constitutes an Event of Default or would constitute an Event of Default but for the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyrequirement that notice be given or time elapse or both;
(gvi) 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 An opinion of State 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, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. Benz, Esq., counsel to for the Borrower and Borrower, substantially in the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ form of Exhibit D hereto;
(vii) An opinion of Pillsbury Winthrop LLP, special counsel to for the Collateral Borrower, in substantially the form of Exhibit E attached hereto;
(viii) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent, substantially in the Collateral Administratorform of Exhibit F hereto; and
(ix) Such other certifications, the Custodian opinions, financial or other information, approvals and the Document Custodian, covering such matters documents as the Administrative Agent and its counsel shall or any Lender may reasonably request;
(j) evidence reasonably , all in form and substance 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to or such Lender (as the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Datecase may be); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date), shall have been paid by the Borrower.
(lb) delivery of such Collateral (including any promissory note, executed assignment agreements and word or pdf copies The Borrower shall have paid all of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) fees payable in accordance with the provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the CodeFee Letter.
Appears in 1 contract
Conditions Precedent to Initial Advances. The obligation of each Lender to make its initial Advance hereunder shall be is subject to the conditions precedent that on or before the date of such Advance:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the same date (except for the financial statements referred to in paragraph (iv) below), in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for the Contract Notes) with one copy for each Lender:
(ai) The Contract Notes payable to the order of each of the Facility Documents (other than the USB Fee LetterLenders, which shall be delivered directly to USBNA and USBTC) duly executed and delivered by the parties thereto, which shall each be in full force and effectrespectively;
(bii) true and complete Certified copies of the Constituent Documents resolutions of the Borrower, Board of Directors of the Servicer Borrower approving this Agreement and the Fund as in effect on Notes, and of all documents evidencing other necessary corporate action with respect to this Agreement and the Closing DateNotes;
(ciii) true and complete copies certified by a Responsible Officer A certificate of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer Secretary or an Assistant Secretary of the Borrower certifying (iA) as the names and true signatures of the officers of the Borrower authorized to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members or other governing body approving sign this Agreement and the other Facility Documents to which it is a party Notes and the transactions contemplated hereby and thereby, other documents to be delivered hereunder; (iiiB) that its representations and warranties set forth in the Facility Documents to which it is a party attached thereto are true and correct in all material respects as copies of the Closing Date (except to Certificate of Incorporation and the extent such representations and warranties expressly relate to any earlier dateBy Laws of the Borrower, in which each case in effect on such representations date; and warranties shall be (C) that attached thereto are true and correct in copies of all material respects as governmental and regulatory authorizations and approvals required for the due execution, delivery and performance of such earlier date), (iv) 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;
(e) 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 general partner, board of directors or members approving this Agreement and the other Facility Documents to which it is Notes, including, without limitation, 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 copy of the Closing Date orders (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), (ivFile No. 70-8903) to the knowledge of the ServicerSEC under the Public Utility Holding Company Act of 1935 authorizing the Borrower's execution, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence delivery and performance of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members approving this Agreement and the other Facility Documents to which it is a party and Notes (collectively, 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"SEC Order"), ;
(iv) to the knowledge Copies of the Fundconsolidated balance sheets of the Borrower and its subsidiaries as of December 31, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement1999, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its subsidiaries for the fiscal year then ended, and copies of the consolidated financial statements of the Borrower and its subsidiaries as of March 31, 2000, in each case certified by a duly authorized officer of the Borrower as having been prepared in accordance with generally accepted accounting principles consistently applied;
(v) A favorable opinion of counsel for the Borrower, acceptable to the Administrative Agent, substantially in the form of Exhibit D hereto and 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 such other matters as any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that Lender through the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document Custodian, covering such matters as the Administrative Agent and its counsel shall may reasonably request;
(jvi) evidence reasonably satisfactory to it that all A favorable opinion of the Covered Accounts shall have been established and the Account Control Agreement shall have been executed and delivered by the BorrowerKing & Spalding, the Collateral Agent and the Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to Special New York counsel for the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 provisions of Article XIV 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, substantially in the case form 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral AgentExhibit E hereto; and
(vvii) upon grant A duly executed and delivered Form U-1, in the form prescribed by Regulation U issued by the Borrower, Board of Governors of the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement;Federal Reserve System.
(nb) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the The Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 the fees payable pursuant to the Fee Letter.
(or its equivalentc) for The commitments of the Borrowerlenders under the Existing Credit Agreement shall have been terminated, the Servicer and the Fund;
(o) obligations of the Borrower under the Existing Credit Agreement to such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender lenders shall have reasonably requested;
(p) evidence that the Fund has received funding commitments been paid in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Codefull.
Appears in 1 contract
Conditions Precedent to Initial Advances. 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 date of such initial Advance the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer Borrower and the Fund Collateral Manager as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors managers or members or other governing body 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) 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;
(e) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, 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), (iv) to the knowledge of the ServicerCollateral Manager, no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) 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;
(f) a closing certificate of a Responsible Officer of from the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members approving this Agreement and Borrower substantially in the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties form 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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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 partyon Exhibit H hereto;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Datecopies of UCC Financing Statements, 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 deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferorReserved;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestReserved;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Administrative Agent and the Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA Lender and USBTC in their respective capacities under the Facility DocumentsCustodian, on or prior to the Closing Date have been received or will be received contemporaneous with closing; and (y) the reasonable and documented accrued fees and expenses of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Administrative Agent Agent, and ▇▇▇▇▇ ▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral AdministratorCustodian, and Eversheds ▇▇▇▇▇▇▇▇▇▇in its respective capacities hereunder, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); Date and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under to be paid by the USB Fee Letter that are invoiced at least one Business Day prior to the Closing DateBorrower hereunder), shall have been paid by the Borrower.Borrower or will be contemporaneous with closing;
(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 provisions of Article XIV 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 Administrative Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, and 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 liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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 AgreementAgreement and with respect to Permitted Liens;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Administrative Agent; and
(v) upon grant by execution of the BorrowerFacility Documents and filing of the relevant UCC-1 Financing Statements in the applicable filing offices, the Collateral Administrative Agent has will have a first priority perfected security interest in the CollateralCollateral (subject to Permitted Liens) which may be perfected by filing, except Permitted Liens or as permitted by this Agreement;.
(n) an executed Certificate of Beneficial Ownership and all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act, ; and the Administrative Agent shall have received a fully executed Internal Revenue Service IRS Form W-9 (or its equivalent) for from the Borrower, the Servicer Collateral Manager and the Fund;Logan Ridge; and
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer Collateral Manager and the Fund Logan Ridge as the Agents Administrative Agent or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Conditions Precedent to Initial Advances. The obligation of each Lender to make its initial Advance hereunder shall be is subject to the conditions condition precedent that on or before the date of such Advance:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the same date (except for the financial statements and information referred to in paragraphs (iv) and (v) below), in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for any Note) with one copy for each Lender:
(ai) each of the Facility Documents (other than the USB Fee LetterAny Note requested by a Lender pursuant to Section 2.16, which shall be delivered directly to USBNA duly completed and USBTC) duly executed and delivered by the parties thereto, which shall Borrower and payable to the order of each be in full force and effectsuch Lender;
(bii) true and complete Certified copies of the Constituent Documents resolutions of the Borrower, the Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer Board of Directors of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body approving this Agreement and the other Facility Loan Documents to which it is, or is to be, a party and of all documents evidencing any other necessary corporate action with respect to this Agreement and such Loan Documents;
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign each Loan Document to which the Borrower is, or is to become, a party and the transactions contemplated hereby and thereby, other documents to be delivered hereunder; (iiiB) that its representations and warranties set forth in the Facility Documents to which it is a party attached thereto are true and correct in all material respects as copies of the Closing Date (except to charter and the extent such representations and warranties expressly relate to any earlier dateCode of Regulations of the Borrower, in which each case as in effect on such representations date; and warranties shall be (C) that attached thereto are true and correct in copies of all material respects as governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of such earlier date), (iv) no Default or Event of Default has occurred this Agreement and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents other Loan Document to which it the Borrower is, or is to become, a party;
(eiv) a Copies of the consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 2002, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, certified by PricewaterhouseCoopers LLP, and the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as of June 30, 2003 and related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the six month period then ended, in all cases as amended and restated to the date of delivery;
(v) A certificate of a Responsible Officer an officer of the Servicer Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or members approving this Agreement and that 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 contained in the Facility Documents to which it is a party Section 4.01 hereof are true and correct in all material respects as of the Closing Date (except to the extent such representations on 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) to the knowledge of the Servicer, date and that no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default event has occurred and is continuing with respect to its Purchase and Contribution Agreement, and (v) as to that constitutes an Event of Default or would constitute an Event of Default but for the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyrequirement that notice be given or time elapse or both;
(gvi) 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 An opinion of State 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, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. Benz, Esq., counsel to for the Borrower and Borrower, substantially in the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ form of Exhibit D hereto;
(vii) An opinion of Pillsbury Winthrop LLP, special counsel to for the Collateral Borrower, in substantially the form of Exhibit E hereto;
(viii) A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent, substantially in the Collateral Administratorform of Exhibit F hereto; and
(ix) Such other certifications, the Custodian opinions, financial or other information, approvals and the Document Custodian, covering such matters documents as the Administrative Agent and its counsel shall or any Lender may reasonably request;
(j) evidence reasonably , all in form and substance 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to or such Lender (as the Collateral Agent case may be).
(b) The Borrower and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to Parent shall have paid all of the Servicer fees payable in connection accordance with the transactions contemplated hereby Fee Letter.
(to the extent invoiced prior to the Closing Date); and (zc) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required All amounts outstanding under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date)Existing Parent Credit Agreement, whether for principal, interest, fees or otherwise, shall have been paid by the Borrowerin full, and all commitments to lend thereunder shall have been terminated.
(ld) delivery of such Collateral (including any promissory note, executed assignment agreements and word or pdf copies of All amounts outstanding under the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the provisions of Article XIV shall have been effected;
(m) a certificate of a Responsible Officer of the BorrowerStandby Bond Purchase Agreement, dated as of the Closing DateAugust 1, certifying to the effect that2003, 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon grant by among the Borrower, the Collateral Agent has a first priority perfected security interest purchasers party thereto and Barclays Bank PLC, as administrative agent, whether for principal, interest, fees or otherwise, shall have been paid in the Collateralfull, except Permitted Liens or as permitted by this Agreement;and all commitments to lend thereunder shall have been terminated.
(ne) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the The Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal satisfactory to or exceeding $100,000,000 as it of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning execution and delivery of the Investment Company Act and qualifies as a RIC under the CodeFirstEnergy Facilities.
Appears in 1 contract
Conditions Precedent to Initial Advances. 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 date of such initial Advance the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer Borrower and the Fund Collateral Manager as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body 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) 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;
(e) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, 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), (iv) to the knowledge of the ServicerCollateral Manager, no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(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 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, the Master Purchase Agreement and the Purchase and Contribution 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 Fund or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Fund, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document 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 Custodian, and shall be in full force and effect;
(k) evidence that (x) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Code.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Capitala Finance Corp.)
Conditions Precedent to Initial Advances. 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:, the deliverables set forth below or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent):
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body approving this Agreement and the other Facility Documents to which it is a party and Documents;
(c) each of the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth of the Borrower contained in the Facility Documents to which it is a party are shall be 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) 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;
(ed) a certificate one or more certificates of a Responsible Officer of each of the Servicer Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action that each of its general partner, 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), (iviii) to the knowledge of the Servicerits knowledge, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) Default has occurred and is continuing, and (viv) 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;
(fe) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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 dateproper financing statements, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper acceptable form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and such further instruments and such further actions that the Purchase Administrative Agent deems reasonably necessary or desirable in order to maintain and Contribution Agreementprotect the Collateral Agent’s first-priority perfected security interest in the Collateral, provided that to the extent any security interest in the Collateral or any deliverable related to the perfection of security interests in the Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement) is not or cannot be provided and/or perfected on the Closing Date (x) without undue burden or expense or (y) after the Borrower’s use of commercially reasonable efforts to do so, then the provision and/or perfection of such security interest(s) or deliverable(s) shall not constitute a condition precedent to the availability of the initial Advance on the Closing Date but shall be required to be delivered after the Closing Date in accordance with Section 5.01(n);
(hf) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction) and, as if applicable), release letters, if any, necessary to release all security interests and other rights (other than Permitted Liens) of any Person (other than the Collateral Agent) in the Collateral previously granted by the Borrower, the Fund Borrower or any transferor;
(ig) legal opinions (addressed to each of the Secured Parties) of ▇(i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered laws and non-contravention with organizational documents and material agreements, the Investment Company Act and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇Rule), counsel to substantive nonconsolidation of the Borrower with the Collateral Manager and the FundEquityholder, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to perfection of the Collateral Agent, ’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Custodian Collateral Agent and the Document Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request;
(h) the Equityholder shall have made (or substantially simultaneously or concurrently with the Closing Date shall make) an equity contribution to the Borrower (or shall be deemed to have made an equity contribution to the Borrower in the form of the payment of a portion of the Purchase Price for the initial Collateral Loans) in an amount sufficient, when combined with the proceeds of the initial Advance hereunder, to pay the purchase price for the initial Collateral Loans to be included in the Collateral and all fees and expenses in connection therewith;
(i) since December 31, 2016, there shall have been no Material Adverse Effect;
(j) evidence reasonably satisfactory after giving effect to it that the transactions contemplated in connection herewith, the Borrower shall not have any Indebtedness other than the Obligations;
(k) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian, and shall be in full force and effectAgreement;
(kl) evidence reasonably satisfactory to it that (xi) all fees and (to the extent invoiced at least two (2) Business Days prior to the Closing Date) expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Agent on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) (to the extent invoiced at least two (2) Business Days prior to the Closing Date) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent Administrative Agent, and of counsel to the Custodian, the Securities Intermediary and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer Administrator in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date)hereby, 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 provisions of Article XIV shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of at least three (3) Business Days prior to the Closing Date, certifying to the effect that, in the case a Borrowing Base Calculation Statement prepared as 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 a date reasonably 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation evidence reasonably satisfactory to it that an amount equal to the Unfunded Reserve Required Amount with respect to the Collateral Loans to be acquired on the Closing Date shall have been deposited into the Unfunded Reserve Account;
(o) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, Equityholder;
(p) the Lenders and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 Notice of Borrowing with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.02, certified by a Responsible Officer of the Borrower (or its equivalent) for the Collateral Manager on behalf of the Borrower), demonstrating that immediately after the making of such initial Advance, each of the Coverage Tests, the Servicer Collateral Quality Test and the FundConcentration Limitations shall be satisfied;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within Borrower (or the meaning Collateral Manager on behalf of the Investment Company Act Borrower) shall have delivered to the Custodian all of the Loan Files for each Collateral Loan owned by the Borrower at the address identified herein; and
(r) the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans that all payments shall be made directly to the Collection Account and qualifies as a RIC under all Collections received by the CodeBorrower or its Affiliates with respect to the Collateral shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties.
Appears in 1 contract
Sources: Credit and Security Agreement (CION Investment Corp)
Conditions Precedent to Initial Advances. The effectiveness of the Closing Date and the obligation of each Lender to make its initial Advance hereunder shall be subject to the following 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:, the deliverables set forth below or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent):
(a) each of the Facility Documents (other than the USB Fee Letter, which shall be delivered directly to USBNA and USBTC) 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 Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) 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 board of directors or members or other governing body approving this Agreement and the other Facility Documents to which it is a party and Documents;
(c) each of the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents to which it is a party are shall be 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) 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;
(ed) a certificate one or more certificates of a Responsible Officer of each of the Servicer Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action that each of its general partner, 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), (iviii) to the knowledge of the Servicer, that no Servicer Termination Event Default or Potential Servicer Termination Event (other than with respect to the existence of an Event of Default) Default has occurred and is continuing, and (viv) 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;
(fe) a certificate copies of a Responsible Officer favorable UCC, tax, and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and, where applicable, trade names of each of the Fund certifying (i) as to its Constituent DocumentsBorrower, (ii) as to its resolutions or other action of its general partner, board of directors, partners or members approving this Agreement the Collateral Manager and the Equityholder as reasonably requested by the Administrative Agent, in each case, indicating that there are no prior Liens on any of the Collateral other Facility Documents than Permitted Liens and Liens 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 be released on the Closing Date (except acceptable 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) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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 partyAdministrative Agent;
(gf) proper financing statements (or the equivalent thereof statements, in any applicable foreign jurisdiction, as applicable) in proper acceptable form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and in any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement, the Master Purchase Agreement and such further instruments and such further actions that the Purchase Administrative Agent deems reasonably necessary or desirable in order to maintain and Contribution Agreementprotect the Collateral Agent’s first-priority perfected security interest in the Collateral;
(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 Fund or any transferor;
(ig) legal opinions (addressed to each of the Secured Parties) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel (including local counsel in any applicable jurisdiction) to the Borrower Borrower, the Collateral Manager and the FundEquityholder, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the Investment Company Act, counsel to the Servicer true sale and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPsubstantive nonconsolidation matters, counsel to perfection of the Collateral Agent, ’s security interest in the Collateral Administrator, the Custodian and the Document Custodian, covering such other matters as the Administrative Agent and its counsel shall reasonably request;
(h) since February 28, 2021, there shall have been no Material Adverse Effect;
(i) the Borrower shall not have any Indebtedness other than the Obligations and any Currency Hedge Transaction expressly required pursuant to Section 5.01(q);
(j) evidence reasonably satisfactory to it that the Borrower shall have Availability of not less than $100,000 as of the Closing Date;
(k) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian, and shall be in full force and effectAgreement;
(kl) evidence reasonably satisfactory to it that (xi) all fees and expenses due and owing to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, Agent on or prior to the Closing Date have been received or will be received contemporaneous contemporaneously with closingthe Closing Date; and (yii) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ Dechert LLP, counsel to the Administrative Agent Agent, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, of counsel to the Collateral Agent Custodian, the Securities Intermediary and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer Administrator in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB Fee Letter that are invoiced at least one Business Day prior to the Closing Date)hereby, 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 provisions of Article XIV shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated Borrowing Base Certificate prepared pro forma 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder;
(o) the Borrower (or the Collateral Manager on behalf of the Borrower) shall have Delivered to the Custodian all of the Collateral Loan Files for each Collateral Loan owned by the Borrower at the address identified herein;
(p) the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans that all payments shall be made directly to the applicable Collection Account and all Collections received by the Borrower or its Affiliates with respect to the Collateral shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties;
(q) sufficiently in advance of the Closing Date, all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and antiAnti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the FundMoney Laundering Laws;
(or) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or sufficiently in advance of (but in any Lender shall have reasonably requested;
event not less than three (p3) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of Business Days prior to) the Closing Date, a Beneficial Ownership Certification in relation to the Borrower to the extent it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; and
(qs) such other approvals, documents, opinions, certificates, searches and reports as the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the CodeAdministrative Agent may reasonably request.
Appears in 1 contract
Sources: Credit and Security Agreement (Saratoga Investment Corp.)
Conditions Precedent to Initial Advances. The obligation of each Lender Bank to make its initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent shall have received on or before the Closing Date day of the initial Borrowing the following, each dated such day, in form and substance reasonably satisfactory to the Administrative AgentAgent and (except for the Notes) in sufficient copies for each Bank:
(a) The Notes, duly executed by the Borrower and payable to the order of each Bank.
(b) This Agreement, duly executed by the Borrower.
(c) The Security Agreement, duly executed by the Borrower, the Agent, the Banks and the Bank Collateral Agent.
(d) The Pledge Agreement, duly executed by First Investors and the Agent.
(e) A copy of the Facility Documents (other than Servicing Agreement, in form and substance acceptable to the USB Fee Letter, which shall be delivered directly to USBNA Agent and USBTC) duly executed by the Borrower and delivered the Servicer.
(f) A copy of the Purchase Agreement, duly executed by the parties thereto, which shall each be in full force and effect;.
(bg) true and complete copies A certificate of the Constituent Documents Secretary of the Borrower, the Servicer and the Fund as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer each of the Borrower of all Governmental Authorizationsand First Investors, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Borrower certifying (i1) as to its Constituent Documents, (ii) as to its resolutions or other action the names and true signatures of its board of directors or members or other governing body approving this Agreement officers authorized to sign each Loan Document and the other Facility Documents Receivables Document to which it is a party and the transactions contemplated hereby notices and thereby, (iii) that its representations and warranties set forth in the Facility Documents other documents to which be delivered by 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 pursuant to any earlier date, such Loan Document or Receivables Document; (2) its By-laws and Articles or Certificate of Incorporation as in which case such representations and warranties shall be true and correct in all material respects as effect on the date of such earlier date)certification; and (3) the resolutions of its Board of Directors approving and authorizing the execution, (iv) no Default or Event of Default has occurred and is continuingdelivery, and (v) as to the incumbency and specimen signature performance by it of each of its Responsible Officers authorized to execute the Facility Documents Loan Document and Receivables Document to which it is a party;
(e) a certificate of a Responsible Officer of , the Servicer certifying (i) as notices and other documents to its Constituent Documentsbe delivered by it pursuant to any such Loan Document or Receivables Document, (ii) as to its resolutions or other action of its general partner, 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), (iv) to the knowledge of the Servicer, no Servicer Termination Event or Potential Servicer Termination Event (other than with respect to the existence of an 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;
(f) a certificate of a Responsible Officer of the Fund certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors, partners 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), (iv) to the knowledge of the Fund, no Default or Event of Default has occurred and is continuing with respect to its Purchase and Contribution Agreement, 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;
(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 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, the Master Purchase Agreement and the Purchase and Contribution Agreement;thereunder.
(h) copies Certificates of proper financing statement amendments appropriate officials as to the existence and good standing of (i) the Borrower in its jurisdiction of incorporation and any and all other jurisdictions where the Property owned 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 business transacted by the Borrower, Borrower requires the Fund or any transferor;Borrower to be qualified therein and where the failure to be so qualified would have a Material Adverse Effect and (ii) each of FIARC and First Investors in its jurisdiction of incorporation.
(i) legal opinions (addressed to each A favorable opinion of Buck, Keenan & Owens, L.L.P., counsel for the Secured Parties) of ▇▇▇▇▇Borrower, FIARC and Fi▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel to the Borrower and the Funds, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel antially in the form of EXHIBIT G hereto and as to the Servicer and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, the Collateral Administrator, the Custodian and the Document Custodian, covering such other matters as any Bank through the Administrative Agent and its counsel shall may reasonably request;.
(j) evidence reasonably Acknowledgment copies of proper Financing Statements (Form UCC-1), duly filed on or before the Closing Date, naming the Borrower as the debtor and the Bank Collateral Agent 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 of all appropriate jurisdictions or any comparable law to perfect the Agent's and the Banks' security interests in all Receivables and related security and the Collateral Account in which an interest may be assigned under the Security Agreement.
(k) Certified copies of Requests for Information or Copies (Form UCC-11) (or a similar search report certified by a party acceptable to the Agent), dated on or before the Closing Date, listing all effective financing statements which name the Borrower, FIARC or First Investors (under its present name and any previous name) as debtor and which are filed in the jurisdictions in which filings were made pursuant to subsection (o) of this Section 4.01, together with copies of such financing statements.
(l) The ALPI Insurance, the GAP Insurance, and the VSI Insurance are in form and substance satisfactory to it that all of the Covered Accounts Agent and the Agent shall have been established named as an additional insured with respect thereto.
(m) A copy of each of the Enterprise Agreement and the Account Control Agreement shall have been other documents contemplated thereby, duly executed and delivered by the Borrowerparties thereto, in form and substance satisfactory to the Collateral Agent and the Custodian, and shall be in full force and effect;Banks.
(kn) evidence that (x) all fees Such other documents and expenses due and owing instruments with respect to the Administrative Agent, each Lender, USBNA and USBTC in their respective capacities under the Facility Documents, on or prior to the Closing Date have been received or will be received contemporaneous with closing; (y) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent and the Collateral Administrator, and Eversheds ▇▇▇▇▇▇▇▇▇▇, counsel to the Servicer in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date); and (z) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the USB 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 provisions of Article XIV 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 (A) those which are being released on the Closing Date and (B) Permitted Liens;
(ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;
(iii) 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;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon 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;
(n) all documentation and other information requested by any such Lender and its Managing Agent required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower, the Servicer and the Fund;
(o) such other opinions, instruments, certificates and documents from the Borrower, the Servicer and the Fund as the Agents or any Lender shall have Agent may reasonably requested;
(p) evidence that the Fund has received funding commitments in an aggregate amount equal to or exceeding $100,000,000 as of the Closing Date; and
(q) the Servicer has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC under the Coderequest.
Appears in 1 contract
Sources: Credit Agreement (First Investors Financial Services Group Inc)