Conditions Precedent to All Purchases (a) The obligation of the Intermediate Seller to purchase the Collateral from the Seller and the obligation of the Buyer to purchase the Collateral from the Intermediate Seller, in each case on the Closing Date, shall be subject to the satisfaction of the following conditions precedent that:
(i) all representations and warranties (A) of the Seller contained in Sections 4.01 and 4.02 and (B) of the Intermediate Seller contained in Sections 4.03 and 4.04, as applicable, shall be true and correct in all material respects on and as the Closing Date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and
(ii) the Seller shall have delivered to the Intermediate Seller and the Buyer duly completed Loan Lists that are true, accurate and complete in all respects as of the Closing Date, which lists are made a part of this Agreement.
(b) The obligation of the Intermediate Seller to purchase the Collateral from the Seller and the obligation of the Buyer to purchase the Collateral from the Intermediate Seller on any Purchase Date after the Closing Date shall be subject to the satisfaction of the following conditions precedent that:
(i) all representations and warranties (A) of the Seller contained in Sections 4.01 and 4.02 and (B) of the Intermediate Seller contained in Sections 4.03 and 4.04, as applicable, shall be true and correct in all material respects on and as of such date as though made on and as of such date and shall be deemed to have been made on and as of such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and
(ii) the Seller shall have delivered to the Intermediate Seller and the Buyer a duly completed Loan List that is true, accurate and complete in all respects as of the related Purchase Date, which list shall be as of such date incorporated into and made a part of this Agreement and an assignment substantially in the form of Exhibit A hereto, as applicable.
Conditions Precedent to the Initial Advance The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale ▇▇▇ordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell ▇▇▇antic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Conditions Precedent to the Closing Date The obligations of each L/C Issuer and each Lender to make the initial Credit Extensions on the Closing Date (if any) shall, in each case, be subject to the following conditions:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by an Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date;
(ii) executed copies of (x) this Agreement, and (y) each Security Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Security Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Officer thereof authorized to act as an Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) Milbank LLP, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions, from the Chief Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit J;
(vi) a certificate attesting to the compliance with clauses (d), (e), (f) and (h) of this Section 4.01 on the Closing Date from an Officer of the Borrower; and
(vii) if any Loans are to be made on the Closing Date, a Committed Loan Notice pursuant to Section 2.02.
(b) All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to Agency Fee Letter shall have been paid or shall have been authorized to be deducted from the proceeds of the initial funding under the Facilities, so long as any such fees or expenses not expressly set forth in the Agency Fee Letter have been have been invoiced not less than three business days prior to the Closing Date.
(c) The Administrative Agent and the Lenders shall have received at least three Business Days prior to the Closing Date, to the extent requested in writing at least seven Business Days prior to the Closing Date, all documentation and other information that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation.
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(e) There has been no change, occurrence or development since September 30, 2020 that could reasonably be expected to have a Material Adverse Effect.
(f) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing.
(g) [Reserved].
(h) Prior to or substantially concurrently with the Closing Date, (i) the 2026 Senior Secured Notes shall have been issued and (ii) the Existing Credit Agreement shall have been paid off in full and terminated and all liens thereunder shall have been released pursuant to a customary payoff letter reasonably satisfactory to the Administrative Agent.
Conditions Precedent to the Loan The obligation of the Lender to make the Loan on the Closing Date is subject to the fulfillment, to the satisfaction of the Lender, of all of the following conditions precedent in addition to the conditions specified in Article II:
(a) Borrower shall have executed and delivered to the Lender the Note, dated the Closing Date.
(b) Lender shall have received on or before the Closing Date an executed copy of:
(i) a certificate of Borrower, dated the Closing Date, substantially in the form set forth in Exhibit L hereto together with the attachments specified therein;
(ii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Dodge LLP, counsel to Borrower, dated the Closing Date, substantially in the form of Exhibit M hereto and otherwise in form and substance satisfactory to the Lender;
(iii) an opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel of Borrower , dated the Closing Date, substantially in the form of Exhibit N hereto and otherwise in form and substance satisfactory to the Lender.
(iv) an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Anasasi, LLP, counsel of Borrower, dated the Closing Date, substantially in the form of Exhibit O hereto and in form and substance satisfactory to the Lender.
(c) Borrower shall have delivered to the Lender a certificate, dated the Closing Date, of a Senior Officer of Borrower (the statements made in which shall be true and correct on and as of the Closing Date): (i) attaching copies, certified by such officer as true and complete, of Borrower’s certificate of incorporation or other organizational documents (together with any and all amendments thereto) certified by the appropriate Governmental Authority as being true, correct and complete copies; (ii) attaching copies, certified by such officer as true and complete, of resolutions of the Board of Directors of Borrower authorizing and approving the execution, delivery and performance by Borrower of this Agreement, the other Transaction Documents and the transactions contemplated herein and therein; (iii) setting forth the incumbency of the officer or officers of Borrower who have executed and delivered this Agreement and the other Transaction Documents including therein a signature specimen of each such officer or officers; and (iv) attaching copies, certified by such officer as true and complete, of certificates of the appropriate Governmental Authority of the jurisdiction of formation, stating that Borrower is in good standing under the laws of such jurisdiction.
(d) Borrower shall have executed and delivered to the Lender the Loan Documents and such other documents as the Lender may reasonably request, in each case, in form and substance satisfactory to the Lender.
(e) Borrower shall have executed and delivered to the Lender the Warrant Agreement.
(f) The Transaction Documents shall be in full force and effect.
(g) The Lender shall have received all fees and expenses due and payable to the Lender on the Closing Date under this Agreement and the other Transaction Documents.
(h) No event shall have occurred and be continuing that constitutes a Default or an Event of Default under this Agreement or a similar event under the other Transaction Documents and no such event will occur or will have occurred by reason of the Loan.
(i) The representations and warranties made by Borrower in Article VIII hereof and in the other Transaction Documents shall be true and correct as of the Closing Date, before and after giving effect to the Loan.
(j) Borrower shall have delivered to the Lender true copies of the License Agreements certified by an officer of Borrower, including all amendments, supplements or other modifications thereto, and each License Agreement and amendment, supplement or other modification thereto shall be in full force and effect.
(k) All filings, recordings and other actions that are necessary or reasonably requested by the Lender in order to establish, protect, preserve and perfect the security interest in the assets of Borrower as provided in the Security Agreement as a valid and perfected first priority security interest with respect to such assets shall have been duly effected.
(l) All necessary governmental and third-party approvals, consents and filings, including in connection with the Loan, the Security Agreement and the Warrant Agreement shall have been obtained or made and be in full force and effect.
(m) The Lender shall have conducted a background check of the officers of Borrower and the results shall be to the satisfaction of the Lender. The Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, including, without limitation, the information described in Section 13.19.
(n) The Lender shall have received from Borrower (i) an executed copy of the Release of Security Agreement between Borrower and ▇▇▇▇ Royalty Funds Holdings II, (ii) evidence to the satisfaction of the Lender that such release(s) in form and substance satisfactory to the Lender will be filed with the U.S. Patent and Trademark Office and the U.S. Copyright Office on the Closing Date, (iii) evidence to the satisfaction of the Lender that a UCC-3 termination statement will be filed with the office of the Secretary of State of the State of Delaware on the Closing Date, and (iv) evidence to the satisfaction of the Lender of agreements to terminate (A) the lockbox agreement among ▇▇▇▇ Royalty Funds Holdings II, Borrower and ▇▇ ▇▇▇▇▇▇ Chase Bank, and (B) the escrow arrangement with respect to duplicate libraries for the benefit of ▇▇▇▇ Royalty Funds Holdings II.
Conditions Precedent to All Advances Each Advance to the Seller by the applicable Purchaser (each, a “Transaction”) shall be subject to the further conditions precedent that:
(i) With respect to any Advance (including the Initial Advance), the Servicer shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Backup Servicer), in the case of an Advance, no later than 2:00 p.m. (New York City, New York time), two Business Days prior to the related Funding Date in a form and substance satisfactory to the Administrative Agent, (1) a Borrowing Notice (Exhibit A-1), Borrowing Base Certificate (Exhibit A-3), Asset List and Monthly Report, if applicable, and (2) a Certificate of Assignment (Exhibit A to the Sale Agreement including Schedule I, thereto) and containing such additional information as may be reasonably requested by the Administrative Agent, and (ii) with respect to any reduction in Advances Outstanding pursuant to Section 2.4(b), the Servicer shall have delivered to the Administrative Agent (with a copy to the Backup Servicer) at least two Business Days prior to any reduction of Advances Outstanding a Borrowing Notice (Exhibit A-2) and a Borrowing Base Certificate (Exhibit A-3) executed by the Servicer and the Seller;
(b) On the date of such Transaction the following statements shall be true, and the Seller shall be deemed to have certified that:
(i) The representations and warranties contained in Section 4.1, Section 4.2 and Section 4.3 are true and correct on and as of such day as though made on and as of such day and shall be deemed to have been made on such day;
(ii) No event has occurred and is continuing, or would result from such Transaction, that constitutes a Termination Event or Unmatured Termination Event;
(iii) On and as of such day, after giving effect to such Transaction, the Advances Outstanding shall not exceed the lesser of (x) the Class A Facility Amount and (y) the Maximum Availability;
(iv) On and as of such day, the Seller and the Servicer each has performed all of the covenants and agreements contained in this Agreement to be performed by such person at or prior to such day; and
(v) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Advance or incremental Advance by the Purchasers in accordance with the provisions hereof, the reduction of Advances Outstanding, or any other transaction contemplated herein;
(c) The Seller shall have delivered to the Collateral Custodian (with a copy to the Backup Servicer and the Administrative Agent) in the case of an Advance, no later than 2:00 p.m. (New York City, New York time) one Business Day prior to any Funding Date a faxed copy of the duly executed original promissory notes, master purchase agreement and purchase statements or a copy of the Loan Register, as applicable, for the Loans, and, if any Assets are closed in escrow, a certificate (in the form of Exhibit L) from the counsel to the Originator or the Obligor of such Assets certifying the possession of the Required Asset Documents; provided that notwithstanding the foregoing, the Required Asset Documents (including any UCCs included in the Required Asset Documents) shall be in the possession of the Collateral Custodian within two Business Days of any related Funding Date as to any Additional Assets;
(d) [Intentionally Omitted];
(e) [Intentionally Omitted];
(f) [Intentionally Omitted];
(g) The Termination Date shall not have occurred (the Seller acknowledging that the Termination Date has occurred);
(h) On the date of such Transaction, the Administrative Agent shall have received such other approvals, opinions or documents as the Administrative Agent may reasonably require;
(i) [Intentionally Omitted];
(j) The Administrative Agent shall have received from the Seller any required Hedging Agreement and related hedging confirms required in connection with the Transaction;
(k) The Seller and Servicer shall have delivered to the Administrative Agent all reports required to be delivered as of the date of such Transaction including, without limitation, all deliveries required by Section 2.3;
(l) With respect to any Acquired Loan acquired from an Affiliate of the Originator, the Administrative Agent has received a satisfactory legal opinion concerning the acquisition of such Loan by the Originator in a true sale transaction;
(m) The Seller shall have paid all fees required to be paid, including all fees required hereunder and under the Purchaser Fee Letter and shall have reimbursed the Purchasers and the Administrative Agent for all fees, costs and expenses of closing the transactions contemplated hereunder and under the other Transaction Documents, including the reasonable attorney fees and any other legal and document preparation costs incurred by the Purchasers and the Administrative Agent; and
(n) The Seller shall have delivered to the Administrative Agent an Officer’s Certificate (which may be part of the Borrowing Notice) in form and substance reasonably satisfactory to the Administrative Agent certifying that each of the foregoing conditions precedent has been satisfied. The failure of the Seller to satisfy any of the foregoing conditions precedent in respect of any Advance shall give rise to a right of the Administrative Agent, which right may be exercised at any time by the Administrative Agent, to refuse to fund the requested Advance or Advances or if any Advances were funded during any such time that any of the foregoing conditions precedent were not satisfied, the Administrative Agent may direct the Seller to pay to the Administrative Agent for the benefit of the applicable Purchasers an amount equal to all such Advances.