Conditions to the Advance. The obligation of FCC to make available the Advance under this Agreement is subject to and conditional upon the representations and warranties contained in this Agreement being true and correct on and as of the Closing Date with reference to the facts subsisting at such time with the same effect as if made on such date, and upon each of the following terms and conditions being satisfied: (a) Confirmation that the Borrower has available to it an operating loan in an amount not less than CAD $8,000,000 on terms and conditions acceptable to FCC, which shall include the review by FCC and its solicitors of the governing credit agreement and /or facility letter, as applicable for such operating loan; (b) Discharge and cancellation of any encumbrances that secures indebtedness on the Borrower’s and each Guarantor’s assets other than Permitted Liens and the Operating Lender Security Interest (subject to Section 5.1(a) in any event); (c) Repayment of any amount outstanding and cancellation of the Borrower’s term lending facility with HSBC; (d) Nothing shall have occurred which FCC shall determine is reasonably likely to have a MAE; Credit Agreement-LCD-10-02-2012 Page 10 of 62 (e) No event shall have occurred and be continuing which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse, or both; (f) All documents required to grant and as necessary pledge the security described in section 2 shall have been executed and delivered to FCC together with confirmation of registration as applicable and shall be in full force and effect, in form and substance satisfactory to FCC; (g) All other documents and instruments required by the terms hereof shall have been duly executed and delivered by all parties thereto and shall be in full force and effect, in form and substance satisfactory to FCC; (h) FCC shall be satisfied in all respects with the business, operations and prospects and assets and liabilities (including without limitation as to environmental matters) of the Security Parties, the corporate and capital structure of the Security Parties, the sources of funding available to the Borrower on and after the Closing Date and the proposed disbursement of funds by the Borrower on and following such date; (i) All consents and approvals necessary or desirable in connection with the completion of the transactions contemplated pursuant to this Credit Agreement and the other Documents shall have been obtained on terms and conditions acceptable to FCC; (j) FCC must have received and approved the form of lease agreement with the applicable landlords with respect to the ▇▇▇▇ County Lands and the Presidio Leasehold Lands, and the Canadian Real Property that is subject to a leasehold interest (to be reviewed in advance of funding to ensure mortgages of leased lands or leasehold interests are unaffected by lease agreements); (k) FCC must have entered into the FCC/Operating Lender Priority Agreement satisfactory to it; (l) FCC is satisfied that you are in possession of and in good standing/compliance with all necessary permits, licences, authorizations and other approvals required to legally undertake and carry on your business in the province and states where you carry on business; (m) FCC must be satisfied in its sole discretion, that all regulatory agency requirements relating directly or indirectly to environmental impacts, potential environmental hazards, environmental, health or safety risks or environmental issues related to your current or projected business operations have been met or to past operations that may have caused or contributed to a breach of regulatory requirements have been rectified; (n) FCC must have reviewed and be satisfied with the organizational documents governing the Borrower and any Guarantors including any applicable partnership agreements, articles of incorporation and bylaws; (o) FCC must be satisfied in its sole discretion with the lender’s title insurance policies to be obtained in respect of the US Real Property and the US Real Property Deeds of Trust; Credit Agreement-LCD-10-02-2012 Page 11 of 62
Appears in 1 contract
Sources: Credit Agreement (Village Farms International, Inc.)
Conditions to the Advance. (a) Prior to the Advance, the following conditions shall have been satisfied in the opinion of the Secured Party:
(i) This Agreement and all other Loan Documents (herein so called and being the Note, a Guaranty from Arabian Shield Development Company, a Delaware corporation ("Arabian Shield"), American Shield Refining Company, a Delaware corporation ("American Shield"), and Texas Oil and Chemical Co. II, Inc., a Texas corporation ("Texas Oil II") (collectively, "Guarantors"), a Pledge Agreement from each of South Hampton and Texas Oil II, covering all of the stock of Gulf State in the case of South Hampton, and all of the stock of South Hampton in the case of Texas Oil II, the Ground Lease (as defined below), the Sublease (as defined below) and each and every other document required by Secured Party to be executed in connection with the Loan, together with all amendments, supplements, modifications and other changes thereto, in each case being in form and substance satisfactory to Secured Party) shall have been duly authorized and executed by Debtors (and by Guarantors, as applicable) and delivered to Secured Party.
(ii) Each Debtor shall have delivered to Secured Party its respective good standing certificates, certificates of existence, certificates of incumbency and duly certified resolutions of its board of directors (in form and substance satisfactory to Secured Party) authorizing it to enter into and perform the transactions contemplated by the Loan Documents.
(iii) Secured Party shall have received an opinion from counsel to Debtors and Guarantors, in form and substance satisfactory to Secured Party.
(iv) The obligation of FCC to make available the Advance under this Agreement is subject to and conditional upon the representations and warranties contained in this Agreement being and the other Loan Documents shall be true and correct on and as the date of the Closing Date with reference to the facts subsisting at such time with the same effect Advance as if made on such date, and upon each of the following terms and conditions being satisfied:
(a) Confirmation that the Borrower has available to it an operating loan in an amount not less than CAD $8,000,000 on terms and conditions acceptable to FCC, which shall include the review by FCC and its solicitors of the governing credit agreement and /or facility letter, as applicable for such operating loan;
(b) Discharge and cancellation of any encumbrances that secures indebtedness on the Borrower’s and each Guarantor’s assets other than Permitted Liens and the Operating Lender Security Interest (subject to Section 5.1(a) in any event);
(c) Repayment of any amount outstanding and cancellation of the Borrower’s term lending facility with HSBC;
(d) Nothing shall have occurred which FCC shall determine is reasonably likely to have a MAE; Credit Agreement-LCD-10-02-2012 Page 10 of 62
(e) No event shall have occurred and be continuing which constitutes an no Event of Default (as defined in this Agreement), or event which with the passage of time or giving of notice would constitute an Event of Default but for (as defined in this Agreement) shall have occurred and be continuing, and no material adverse change shall have occurred with respect to Debtors' business or assets (including, without limitation, the requirement that notice be given or time elapseCollateral, or both;as defined in this Agreement) since October 31, 1999.
(fv) All documents required to grant and as necessary pledge Evidence of insurance which complies with the security described in section 2 requirements of the Loan Documents shall have been executed and delivered to FCC together with confirmation of registration as applicable and shall be in full force and effect, in form and substance satisfactory to FCC;Secured Party.
(gvi) All other documents and instruments required Receipt by Secured Party of a $17,500 commitment fee (all commitment fees described herein are in addition to any Earn▇▇▇ ▇▇▇ey (as defined herein)).
(vii) UCC-1 Financing Statements covering the terms hereof Collateral shall have been duly authorized and executed by the Debtors and delivered by to Secured Party.
(viii) The results of a UCC search showing all parties thereto financing statements and shall other documents or instruments on file against each Debtor and each Guarantor in the office of the Secretary of State of the State of Texas and such other jurisdictions as Secured Party may request, each such search to be in full force and effect, in form and substance satisfactory as of a date no more than 10 days prior to FCCthe date hereof;
(hix) FCC shall be satisfied Receipt by Secured Party of a certificate from Debtors in all respects with the business, operations favor of and prospects and assets and liabilities satisfactory to Secured Party stating that no Debtor is presently involved in any litigation other than such litigation previously disclosed to Secured Party in writing.
(including without limitation x) Receipt by Secured Party of $35,000 as to environmental matters) earn▇▇▇ money ("Earn▇▇▇ ▇▇▇ey"). Debtors agree that regardless of the Security Partieswhether Secured Party makes any Advance, the corporate and capital structure of the Security Parties, the sources of funding available to the Borrower on and after the Closing Date and the proposed disbursement of funds by the Borrower on and following such date;
Earn▇▇▇ ▇▇▇ey will be applied (i) All consents to all legal fees and approvals necessary or desirable expenses incurred by Secured Party in connection with documentation, negotiation and closing the completion of the transactions loan contemplated pursuant to by this Credit Agreement and the other Documents shall have been obtained on terms (ii) to Secured Party's environmental appraisal costs and conditions acceptable to FCC;
(j) FCC must have received and approved the form of lease agreement with the applicable landlords with respect to the expenses. If any Earn▇▇▇ ▇▇▇▇ County Lands and ey remains after payment of the Presidio Leasehold Landsforegoing (such remainder, if any, being the "Balance"), and if the Canadian Real Property that Advance is subject to a leasehold interest (to be reviewed in advance of funding to ensure mortgages of leased lands or leasehold interests are unaffected made by lease agreements);
(k) FCC must have entered into the FCC/Operating Lender Priority Agreement satisfactory to it;
(l) FCC is satisfied that you are in possession of and in good standing/compliance with all necessary permits, licences, authorizations and other approvals required to legally undertake and carry on your business in the province and states where you carry on business;
(m) FCC must be satisfied in its sole discretion, that all regulatory agency requirements relating directly or indirectly to environmental impacts, potential environmental hazards, environmental, health or safety risks or environmental issues related to your current or projected business operations have been met or to past operations that may have caused or contributed to a breach of regulatory requirements have been rectified;
(n) FCC must have reviewed and be satisfied with the organizational documents governing the Borrower and any Guarantors including any applicable partnership agreements, articles of incorporation and bylaws;
(o) FCC must be satisfied in its sole discretion with the lender’s title insurance policies to be obtained in respect of the US Real Property and the US Real Property Deeds of Trust; Credit Agreement-LCD-10-02-2012 Page 11 of 62Secured
Appears in 1 contract
Sources: Loan and Security Agreement (Arabian Shield Development Co)
Conditions to the Advance. The obligation advance under the SSCD Credit Facility shall be made when, and only when, the following conditions have been satisfied, and continue to be satisfied as of FCC the date of such advance, which conditions are for the sole and exclusive benefit of the Lender, and notwithstanding anything to make available the Advance contrary, which may be waived in writing only by the Lender:
(a) the Lender shall be satisfied in all respects with each of the following:
(i) the completion and results of its due diligence review of the Borrower and its Affiliates, including discussions with management, a review of the historical financial results, a review of all Material Contracts, asset and other appraisals, title review and reports, environmental review and reports, mining reserves, engineering reports, the terms of all Indebtedness, the particulars of all Litigation, an inspection of all equipment and premises (including the Mineral Property), a review of working capital balances, including Inventory and Receivables, and discussions with selected personnel having dealings with the Borrower and its Affiliates,
(ii) the terms and conditions of all Material Contracts, and
(iii) the capitalization and capital structure of the Borrower and its Affiliates;
(b) the Lender shall have received from the Borrower (in form and substance satisfactory to the Lender) irrevocable directions from the Borrower to the Lender to pay a portion of the advance hereunder to (i) the Lender to repay all outstanding Indebtedness owing under this Agreement is subject or in connection with the Existing Senior Credit Facilities; (ii) the Lender in an amount equal to all reasonable fees and conditional upon expenses of the representations Lender outstanding as of the Closing Date, including the fees and warranties contained expenses described in this Agreement being true Section 2.8 and correct on 2.18; and (iii) Lender's Counsel in an amount equal to the reasonable fees and expenses of such counsel outstanding as of the Closing Date with reference to the facts subsisting at such time with the same effect as if made on such date, and upon each of the following terms and conditions being satisfied:
(a) Confirmation that the Borrower has available to it an operating loan provided for in an amount not less than CAD $8,000,000 on terms and conditions acceptable to FCC, which shall include the review by FCC and its solicitors of the governing credit agreement and /or facility letter, as applicable for such operating loan;
(b) Discharge and cancellation of any encumbrances that secures indebtedness on the Borrower’s and each Guarantor’s assets other than Permitted Liens and the Operating Lender Security Interest (subject to Section 5.1(a) in any event)2.18;
(c) Repayment the Lender shall have received all share certificates evidencing all Capital Stock of HPL that is legally and beneficially owned by any amount outstanding Obligor or any Obligor Subsidiary as of such date, together with all corresponding transfers and cancellation powers of the Borrower’s term lending facility with HSBCattorney;
(d) Nothing the Lender shall have occurred which FCC received evidence satisfactory to it that:
(i) the Obligors have obtained all material permits, leases, licenses, quotas, approvals and authorizations, required for the use, lease, construction, development, occupation and operation of, and access to, all Mortgaged Properties,
(ii) the actual use, lease, construction, development, occupation and operation of, and access to, all Mortgaged Properties is permitted and complies in all respects with all Applicable Laws, and
(iii) the Borrower shall determine is reasonably likely to have a MAE; Credit Agreement-LCD-10-02-2012 Page 10 not be in default of 62any of the terms and conditions of the Term Sheet;
(e) No event the Lender shall have occurred and be continuing which constitutes an Event received all of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse, or both;
(f) All documents required to grant and as necessary pledge the security described in section 2 shall have been executed and delivered to FCC together with confirmation of registration as applicable and shall be in full force and effectfollowing, in form and substance satisfactory to FCCthe Lender and, if applicable, in such number of counterparts as the Lender shall reasonably request:
(i) a certificate of corporate status respecting each of the Borrower and HPL from the jurisdiction in which each such entity was formed, together with certificates of status evidencing all necessary extra-provincial registrations, in each case dated the date hereof,
(ii) a certified copy of the Constating Documents of each of the Borrower and HPL and all amendments, amalgamations, continuances and other changes thereto,
(iii) a certified copy of all corporate action taken by each of the Borrower and HPL to authorize the borrowing of money, the granting of the Security and the execution and delivery of this Agreement and the other Loan Documents to which it is a party and the performance of all other acts, matters and things provided for herein and therein,
(iv) a certificate of incumbency of officers and directors respecting each of the Borrower and HPL,
(v) an Officer's Certificate from each of the Borrower and HPL respecting such matters concerning the Borrower and HPL as the Lender may reasonably require,
(vi) executed copies of all of the Loan Documents, including the Senior Secured Convertible Debenture, the Investor Rights Agreement, the Subscription Agreement, the Registration Rights Agreement, the Security Documents, the Priorities Agreement and the Subordination Agreement,
(vii) a certificate of insurance satisfactory to the Lender evidencing insurance coverage satisfactory to the Lender relating to the Properties and that the Lender is the first loss payee on all Properties (other than the CWB Property), and added as an additional insured with the standard mortgage clauses,
(viii) not less than five (5) Business Days' prior to the date of such advance, the Financial Statements,
(ix) a favourable enforceability opinion of the Obligors' Counsel as to all legal matters pertaining to this Agreement, all Loan Documents and the transactions contemplated therein,
(x) all releases and discharges in registrable form of all Liens (other than Permitted Liens and Permitted Encumbrances) against the Property of the Borrower, and
(xi) a certificate of the Borrower and each of the other Obligors to the Lender that:
(A) no Event of Default or Material Adverse Change has occurred and is continuing;
(B) all representations and warranties are true and correct and all covenants and conditions contained in this Agreement have been satisfied;
(C) all consents and approvals, whether from Governmental Bodies, the shareholders of the Borrower, or otherwise, required in connection with the Loan Documents have been obtained on terms and conditions satisfactory to the Lender in connection with the Loan Documents, including all regulatory, commission and exchange approvals required or advisable in connection with the issuance of the Senior Secured Convertible Debenture and the common shares contemplated thereunder; and
(D) neither the Borrower nor any other Obligor is in default under the terms of any Material Contracts and will not, with the passage of time, be in such default;
(f) not less than five (5) Business Days' prior to the date of such advance, the Lender shall have reviewed and authorized the Approved CapEx Budget;
(g) All the Security Documents or financing statements or other documents and instruments required by the terms hereof filings in respect thereof shall have been duly executed and delivered by filed, registered, entered or recorded in all parties thereto and offices of public record necessary or desirable in the opinion of the Lender, acting reasonably, to preserve or protect the Security constituted thereby;
(h) the Lender shall be in full force a first priority security position, subject only to the Priorities Agreement and effectthe RBC Cash Collateral Security;
(i) the Lender shall have received such information (including financial projections) with respect to the Borrower and its Subsidiaries as the Lender may require, in form and substance satisfactory to FCC;
(h) FCC shall be satisfied in all respects with the businessLender, operations and prospects and assets and liabilities (including without limitation as to environmental matters) of the Security Parties, the corporate and capital structure of the Security Parties, the sources of funding available to the Borrower on and after the Closing Date and the proposed disbursement of funds by the Borrower on and following such date;
(i) All consents and approvals necessary or desirable in connection with the completion of the transactions contemplated pursuant to this Credit Agreement and the other Documents shall have been obtained on terms and conditions acceptable to FCCacting reasonably;
(j) FCC must the Lender shall not have received and approved the form of lease agreement with the applicable landlords any material adverse information with respect to any Obligor which is inconsistent with, or was omitted from, the ▇▇▇▇ County Lands and information previously disclosed by any Obligor to the Presidio Leasehold Lands, and the Canadian Real Property that is subject to a leasehold interest (to be reviewed in advance of funding to ensure mortgages of leased lands or leasehold interests are unaffected by lease agreements)Lender;
(k) FCC must the Lender shall have entered into received a promissory note for the FCC/Operating Lender Priority Agreement full amount of the advance, in form and substance satisfactory to itthe Lender;
(l) FCC is the Lender shall be satisfied that you are that:
(i) the funds shall be used for the purposes set out in possession of and in good standing/compliance with all necessary permitsSection 2.4, licencesand
(ii) no Material Adverse Change has occurred or will occur as the result of, authorizations and other approvals required to legally undertake and carry on your business in the province and states where you carry on business;or immediately following, such advance; and
(m) FCC must be satisfied in its sole discretion, that all regulatory agency requirements relating directly or indirectly to environmental impacts, potential environmental hazards, environmental, health or safety risks or environmental issues related to your current or projected business operations the Lender shall have been met or to past operations that received such other documents and assurances as it may have caused or contributed to a breach of regulatory requirements have been rectified;
(n) FCC must have reviewed and be satisfied with the organizational documents governing the Borrower and any Guarantors including any applicable partnership agreements, articles of incorporation and bylaws;
(o) FCC must be satisfied in its sole discretion with the lender’s title insurance policies to be obtained in respect of the US Real Property and the US Real Property Deeds of Trust; Credit Agreement-LCD-10-02-2012 Page 11 of 62reasonably request.
Appears in 1 contract