Conditions Precedent to Disbursement Agency’s obligation to disburse Grant Funds to Grantee under this Grant is subject to satisfaction of each of the following conditions precedent:
7.2.1 Agency has received sufficient funding, appropriations, expenditure limitation, allotments or other necessary expenditure authorizations to allow Agency, in the exercise of its reasonable administrative discretion, to make the disbursement from the Funding Source;
7.2.2 No default as described in Section 15 has occurred; and
7.2.3 Grantee’s representations and warranties set forth in Section 8 are true and correct on the date of disbursement(s) with the same effect as though made on the date of disbursement.
Conditions Precedent to Loans The obligation of each Initial Lender to make its Initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) a favorable opinion of V▇▇▇▇▇ and E▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent, Lead Arranger, each Co-Arranger and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(v) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies, or an exhibit, of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in paragraphs (xvi) and (xvii) below have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the transactions contemplated by this Agreement and the incurrence of indebtedness related thereto and application of proceeds, from its chief financial officer;
(viii) audited consolidated financial statements of the Borrower for the 2004 and 2005 fiscal years and unaudited consolidated financial statements of the Borrower for any interim quarterly periods that have ended since the most recent of such audited financial statements, which in each case, (1) shall be satisfactory in form and substance to the Lead Arranger and the Lenders, (2) shall not be materially inconsistent with the Information heretofore provided to the Lenders, and (3) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-1.
(ix) evidence of the receipt by the Borrower of not less than $250,000,000 cash proceeds from the issuance of Equity Interests of the Borrower;
(x) evidence that the Existing Agreement has been or concurrently with the Closing Date is being terminated and repaid in full;
(xi) such other certificates, documents, or opinions as the Administrative Agent or the Required Lenders reasonably may require;
(xii) any fees required to be paid on or before the Closing Date shall have been paid;
(xiii) unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent);
(xiv) the Closing Date shall have occurred on or before March 31, 2007;
(xv) there shall have been no change, occurrence or development since December 31, 2005 that could reasonably be expected to have a Material Adverse Effect;
(xvi) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Article IV, the representations and warranties contained in subsections 5.05(a) and (b) of
CONDITIONS PRECEDENT TO LOAN The obligations of Lender to make the Loan hereunder are subject to the satisfaction by Borrower of the following conditions:
CONDITIONS PRECEDENT TO EACH ADVANCE Lender’s obligation to make the initial Advance and each subsequent Advance under this Agreement shall be subject to the fulfillment to Lender’s satisfaction of all of the conditions set forth in this Agreement and in the Related Documents.
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.