Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund), Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund), Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which fee letter shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Investment Advisor and of the Investment Management Agreement, each as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member 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) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved]the list of Initial Collateral Assets from the Borrower;
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (T Series Middle Market Loan Fund LLC), Revolving Credit and Security Agreement (T Series Middle Market Loan Fund LLC), Revolving Credit and Security Agreement (T Series Middle Market Loan Fund LLC)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have has received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) [reserved];
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; and
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested prior to the Closing Date.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (KKR FS Income Trust Select), Revolving Credit and Security Agreement (KKR FS Income Trust Select)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which fee letter shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of on the Closing Date (except to or, if no Collateral Assets have been acquired by the extent such representations and warranties expressly relate to any earlier dateBorrower on the Closing Date, in the first Business Day on which case such representations and warranties shall be true and correct in all material respects as of such earlier dateone or more Collateral Assets have been acquired by the Borrower), and (iv) as to at least 5.00% of the incumbency and specimen signature Aggregate Net Collateral Balance consists of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyRetention Holder Originated Collateral Assets;
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Ares Strategic Income Fund), Revolving Credit and Security Agreement (Ares Core Infrastructure Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent and Collateral Administrator Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Investment Advisor as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer Investment Advisor certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Investment Advisor, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date in accordance with Section 13.04(a) have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby and in accordance with Section 13.04(a) (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent and Collateral Administrator Fee Letter) in accordance with Section 13.04(a) 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 Account Control Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Fidelity Private Credit Fund), Revolving Credit and Security Agreement (Fidelity Private Credit Fund)
Conditions Precedent to Initial Advance. The effectiveness of this Agreement and of the obligation of each Lender hereunder to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that waiver by the Administrative Agent shall have received of the following conditions precedent on or before prior to the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative AgentDate:
(a) each of the Facility Documents (other than and the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) Performance Guaranty duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder Parent, the Seller and the Servicer as in effect on the Closing Date;
Date and, to the extent applicable, (cx) a certificate of a Responsible Officer certified within forty-five (45) days of the Borrower certifying Closing Date by the appropriate governmental official and (iy) certified by its secretary or an assistant secretary as to its Constituent Documentsof the Closing Date, in each case, as being in full force and effect without modification or amendment, (ii) as signature and incumbency certificates of the officers of such Person executing the Facility Documents to its which it is a party, (iii) resolutions of the board of directors or other action similar governing body of its member each of the Borrower, the Parent, the Seller and the Servicer approving and authorizing the execution, delivery and performance of this Agreement and the other Facility Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment and (iv) a good standing certificate from the applicable Governmental Authority of each of the Borrower’s, the Parent’s, the Seller’s and the Servicer’s jurisdiction of incorporation, organization or formation and, with respect to the Borrower, in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business except where such failure to be qualified would not reasonably be expected to have a Material Adverse Effect, each dated a recent date prior to the Closing Date;
(c) each of the Borrower, the Seller and the Servicer shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to be obtained by them, in connection with the transactions contemplated by the Facility Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent other than those consents or approvals that failure of which to obtain would not reasonably be expected to have a Material Adverse Effect;
(d) the Borrower and the Seller shall have delivered to the Administrative Agent an originally executed Closing Date Certificate, in each case, dated as of the Closing Date;
(e) the Administrative Agent shall have received a Solvency Certificate from each of the Borrower and the Seller, in each case, dated as of the Closing Date;
(f) financing statements, to be filed on the Closing Date, under the UCC in each jurisdiction necessary to perfect the security interest of the Administrative Agent in the Collateral, as contemplated by this Agreement;
(g) copies of financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any transferor;
(h) legal opinions (addressed to each of the Secured Parties) of one or more firms of counsel to the Borrower, the Parent and the Seller and an in-house legal opinion of the Servicer, in each case, covering such matters as the Administrative Agent and its counsel shall reasonably request including, but not limited to, opinions regarding substantive non-consolidation, true sale, enforceability, covered fund matters under the ▇▇▇▇▇▇▇ Rule, no conflicts and perfection;
(i) evidence reasonably satisfactory to it that all of the Borrower Accounts shall have been established;
(j) evidence that (x) all fees to be received by the Administrative Agent and each Lender on or prior to the date of the initial Advance pursuant to the 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, (iii) that its representations including rating agency conduit affirmation fees to the extent attributable to this Agreement and warranties set forth the reasonable and documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the Facility Documents to which it is a party are true and correct transactions contemplated hereby, shall have been paid by the Borrower, in all material respects as of the Closing Date (except each case to the extent such representations fees and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as expenses were invoiced to the incumbency and specimen signature of each of its Responsible Officers authorized Borrower at least two (2) Business Days prior to execute the Facility Documents to which it is a party;such date; and
(dk) [Reserved];
(e) [Reserved];
(f) a certificate the Administrative Agent shall not have become aware, since March 31, 2020, of a Responsible Officer of any new information or other matters not previously disclosed to the Administrative Agent relating to the Borrower, the Parent, the Seller or the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby herein that the Administrative Agent, in its reasonable judgment, deems inconsistent in a material and therebyadverse manner with the information or other matters previously disclosed to the Administrative Agent relating to the Borrower, the Parent, the Seller and the Servicer; and
(iiil) the Administrative Agent shall have received certificates from the Servicer’s insurance broker, or other evidence satisfactory to it that all insurance required to be maintained under the Servicing Agreement, is in full force and effect, and the Administrative Agent shall have completed 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 review of the Closing Date (except insurance coverage for the Servicer and the results of such review 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), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Administrative Agent.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Compass, Inc.), Revolving Credit and Security Agreement (Compass, Inc.)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder Sponsor and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member 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) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved]a recently dated certificate of good standing of the Borrower issued by the Secretary of State of the State of Delaware;
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying Sponsor, in its capacity as Sponsor, certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (ivv) 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 Servicer, in its capacity as Servicer, certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Sponsor or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Sponsor, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the initial Advance; (ii) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;
(l) if applicable, delivery of such Collateral (including any promissory note, executed assignment agreements and word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement and the definition of “Delivered” shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: First Omnibus Amendment (Pennantpark Investment Corp)
Conditions Precedent to Initial Advance. The obligation obligations of the Lenders under this Agreement to make the initial Advance are subject to satisfaction of the following conditions on or before the Initial Funding Date:
(a) The Administrative Agent shall have received an opinion, dated the Initial Funding Date, of Barnes & Thornburg, special counsel to the Seller and the Borrower, ▇▇ ▇o "▇▇▇▇ ▇▇▇e" of the Collateral from the Seller to the Borrower under the Bankruptcy Code in form and substance satisfactory to the Administrative Agent.
(b) The Administrative Agent shall have received an opinion in form and substance satisfactory to the Administrative Agent, dated the Initial Funding Date, from Barnes & Thornburg, special counsel for the Borrower, to the effect ▇▇▇▇:
(i) The Borrower is an entity duly organized, existing and in good standing under the laws of the State of its incorporation or formation as applicable, with corporate power and authority to own its properties and conduct its business as currently conducted; and it is qualified to do business as a foreign corporation in good standing in each jurisdiction where such qualification is required;
(ii) Each of the Transaction Documents to which it is a party has been duly authorized, executed and delivered by the Borrower and is a valid and binding agreement, enforceable against the Borrower in accordance with its respective terms, except to the extent that enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity);
(iii) The pledge of the Collateral pledged by the Borrower to the Administrative Agent, for the benefit of the Secured Parties, the compliance by the Borrower with all of the provisions of the Transaction Documents and the consummation of the transactions therein or herein contemplated will not (A) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any security agreement, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Borrower is a party or by which the Borrower is bound or to which any of the property or assets of the Borrower is subject, (B) result in any violation of the provisions of any order known to such counsel of any court or Governmental Authority having jurisdiction over the Borrower or any of its properties or (C) result in any violation of the provisions of the Organization Documents of the Borrower or any Applicable Law;
(iv) Confirming that no authorization, approval, consent or order of, or filing with, any court or Governmental Authority is required by the Borrower in connection with the consummation of the transactions contemplated in the Transaction Documents, except such as have been obtained;
(v) Confirming that such counsel knows of no actions, proceedings or investigations pending before any court or Governmental Authority against the Borrower (A) asserting the invalidity of any of the Transaction Documents to which it is a party, (B) seeking to prevent the consummation by the Borrower of any of the transactions contemplated by the Transaction Documents or (C) which might materially and adversely affect the performance by the Borrower of its obligations under the Transaction Documents;
(vi) The provisions of the Security Agreement are effective to create a valid security interest in the Collateral in favor of the Administrative Agent, for the benefit of the Secured Parties, and such security interest is perfected and prior to all other creditors of and purchasers of the Borrower; and
(vii) Confirming that the Borrower is not required to be registered as an investment company" under the Investment Company Act of 1940, as amended.
(c) The Administrative Agent shall have received an opinion in form and substance satisfactory to the Administrative Agent, dated the Initial Funding Date, from Barnes & Thornburg, counsel to the Seller, to the effect that:
(i) ▇▇▇▇ ▇▇▇ler is an entity duly organized, existing and in good standing under the laws of the State of its incorporation or formation as applicable, with corporate power and authority to own its properties and conduct its business as currently conducted; and each Seller is qualified to do business as a foreign corporation in good standing in each jurisdiction where such qualification is required;
(ii) Each Seller has or had at all relevant times full power, authority and legal right to exercise, deliver and perform its obligations under each Transaction Document to which it is a party; and has or had at all relevant times full power, authority and legal right to acquire, own and transfer the Collateral and the other property pursuant to the Purchase Agreement;
(iii) The Purchase Agreement has been duly authorized, executed and delivered by each Seller and is a valid and binding agreement, enforceable against such Seller in accordance with its terms, except to the extent that enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law);
(iv) The transfer of the Collateral and the other property transferred by each Seller to the Borrower pursuant to the Purchase Agreement, the compliance by each Seller with all of the provisions of the Transaction Documents and the consummation of the transactions therein or herein contemplated will not (A) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any security agreement, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which any Seller is a party or by which any Seller is bound or to which any of the property or assets of any Seller is subject, (B) result in any violation of the provisions of any order known to such counsel of any court or Governmental Authority having jurisdiction over any Seller or any of its properties or (C) result in any violation of the provisions of the articles of incorporation, by-laws, certificate of formation, operating agreement or partnership agreement as applicable, of any Seller or any statute or any Applicable Law;
(v) No authorization, approval, consent or order of, or filing with, any court or Governmental Authority is required by any Seller in connection with the consummation of the transactions contemplated in the Transaction Documents, except such as have been obtained;
(vi) Such counsel knows of no actions, proceedings or investigations pending before any court or Governmental Authority against any Seller (A) asserting the invalidity of the Transaction Documents to which it is a party, (B) seeking to prevent the consummation by any Seller of any of the transactions contemplated by the Transaction Documents or (C) which might materially and adversely affect the performance by any Seller of its obligations under the Transaction Documents; and
(vii) The provisions of the Purchase Agreement are effective to create a valid security interest in the Collateral in favor of the Borrower and such security interest is perfected and prior to all other creditors of and purchasers of any Seller.
(d) The Administrative Agent shall have received certificates of each Lender of the Borrower, the Seller and the Servicer, dated the Initial Funding Date, stating that (i) its representations and warranties made herein and in the other Transaction Documents are true and correct as of the Initial Funding Date, and (ii) it has complied with all agreements and satisfied all conditions to make be satisfied on its initial Advance hereunder part pursuant to the Transaction Documents on or prior to the Initial Funding Date.
(e) Each party shall have performed and complied with all agreements and conditions contained herein, in the Security Agreement and all other Transaction Documents which are required to be performed or complied with by such party on or before the Initial Funding Date.
(f) This Agreement, the Purchase Agreement, the Security Agreement and all other Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto, shall be subject in full force and effect on the Initial Funding Date and shall be in form and substance satisfactory to the satisfaction Administrative Agent.
(or written waiverg) of the conditions set forth in Section 3.02 and the conditions precedent that the The Administrative Agent shall have received on or before the Closing Date Initial Funding Date, the following, in each case in form and substance reasonably satisfactory to it:
(i) a copy of the resolutions and the Organizational Documents of each Seller certified by an Authorized Officer of each Seller as of the Initial Funding Date, duly authorizing the execution, performance and delivery by each Seller of the Purchase Agreement and any other documents executed by or on behalf of such Seller in connection with the transactions contemplated by the Transaction Documents; and an incumbency certificate of each Seller as to the person or persons executing or delivery each such document;
(ii) certified completed copies of requests for information or copies (or a similar search report certified by a party acceptable to the Administrative Agent:
), dated not more than thirty (a30) each days prior to the Initial Funding Date, listing all effective financing statements that name the Borrower or any Seller as debtor and that are filed in the jurisdictions in which the financing statements described in clause (i) of the Facility Documents this Section 3.2 were filed, together with copies of such financing statements, and similar search reports with respect to federal tax liens in all appropriate jurisdictions (none of which, other than the Collateral Agent Fee Letterfinancing statements in Section 3.2(i), which shall be delivered directly to cover any of the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectCollateral);
(biii) true and complete copies a copy of an officially certified document dated not more than thirty (30) days prior to the Constituent Documents Initial Funding Date evidencing good standing of each of the Borrower, the Equityholder Servicer and the Seller; and
(iv) such other documents and evidence with respect to the Borrower, any Seller and the Servicer as in effect on the Closing Date;Administrative Agent may request.
(ch) a certificate of a Responsible Officer No fact or condition shall exist as of the Initial Funding Date under Applicable Law which in the Administrative Agent's reasonable opinion would make it unlawful for the Borrower certifying or any of the other parties thereto to perform their respective obligations under this Agreement, the Security Agreement, the Purchase Agreement or any other Transaction Document.
(i) as On or prior to its Constituent Documentsthe Initial Funding Date, (ii) as the Borrower and each Seller shall have filed any financing statements, termination statements or amendments thereto, wherever necessary or advisable, in order to its resolutions perfect the transfers and assignments of the Collateral to the Borrower and the grant of the security interest therein to the Administrative Agent and shall have delivered file-stamped copies of such financing statements or other action evidence of its member approving the filing thereof to the Administrative Agent.
(j) All taxes and fees due in connection with the filing of the financing statements referred to in clause (i) of this Agreement Section 3.2 shall have been paid in full or duly provided for.
(k) Each Seller and the Servicer shall certify to the Administrative Agent that no Servicer Event or Default Event shall have occurred on or prior to the Initial Funding Date.
(1) As of the Initial Funding Date, no action or proceeding shall have been instituted nor shall any governmental action be threatened before any court or Governmental Authority nor shall any order, judgment or decree have been issued or proposed to be issued by any court or Governmental Authority to set aside, restrain, enjoin or prevent the performance of this Agreement, any Transaction Document or any of the other Facility Documents to which it is a party and agreements or the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;hereby.
Appears in 1 contract
Sources: Securities Funding Agreement (Union Acceptance Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all USActive 53861575.5 -67- security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested. USActive 53861575.5 -68-
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Collateral Manager as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member the General Partner, acting as general partner of the Borrower approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its board the member of directors or members the Collateral Manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(e) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(f) 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 granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(g) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Collateral Manager, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(h) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(i) evidence reasonably satisfactory to it that (i) all fees and expenses due and owing to each Lender on or prior to the Closing Date and the structuring fee payable under the BNP Fee Letter have been received or will be received contemporaneously with the initial Advance; (ii) the reasonable and documented fees and out-of-pocket expenses of ▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US LLP, counsel to the Administrative Agent and the Lenders, in connection with the transactions contemplated hereby; and (iii) the reasonable and documented out-of-pocket expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the making of the initial Advance, shall have been paid by the Borrower;
(j) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(k) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(l) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested prior to the Closing Date; provided that nothing in this clause (l) shall imply or impose a duty on the part of the Collateral Agent to require any other documents.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligation of each Lender the Banks to undertake the Commitment and to make its the initial Advance hereunder shall be of the Loans is subject to the satisfaction (or written waiver) prior fulfillment of each of the conditions set forth in Section 3.02 and the conditions precedent that the following conditions:
(a) The Administrative Agent shall have received on or before the Closing Date each of the following, each for itself and for the benefit of the Banks, in form and substance reasonably satisfactory to the Administrative Agentit:
(ai) Loan Certificate from the Borrower, Parent Company and each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents Subsidiary of the Borrower, substantially in the Equityholder form attached hereto as Exhibit M, including a certificate of incumbency with respect to each officer authorized to execute Loan Documents on behalf of such entity, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the Certificate of Incorporation or Partnership Agreement and Certificate of Limited Partnership, as applicable, of such entity, certified to be true, complete and correct by the Servicer appropriate governmental authority, (B) certificates of good standing for such entity issued by the Secretary of State or similar state official for each state in which such entity is incorporated or required to qualify to do business, (C) a true, complete and correct copy of the Bylaws of such entity, as in effect on the Closing Agreement Date;
, (cD) a certificate of a Responsible Officer true, complete and correct copy of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)entity authorizing it to execute, (iv) that no Default or Event of Default has occurred deliver and is continuing, and (v) as to perform the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party, (E) a true, complete and correct copy of all shareholders' or other similar agreements or voting trust agreements in effect with respect to the stock or partnership interests of each entity, (F) a photocopy of the Licenses, if any, held by such entity, certified by an Authorized Signatory to be in full force and effect on the date hereof, (G) a list of the Pole Agreements, if any, held by such entity, certified by an Authorized Signatory to be in full force and effect on the date hereof, and (H) a copy of the Management Agreement;
(ii) This duly executed Loan Agreement;
(iii) A duly executed Note to the order of each Bank in the amount of such Bank's pro rata share of the Commitment;
(iv) The duly executed Security Agreement, together with appropriate UCC-1 financing statement forms;
(v) Lien search results with respect to the Borrower, its Subsidiaries, Parent Company, and the Manager from all appropriate jurisdictions and filing offices, together with appropriate UCC-3 termination statements relating to Liens which are not Permitted Liens;
(vi) Original Uniform Commercial Code Form 1 financing statements, signed by the Borrower as debtor and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions, in such form, substance and number as shall be satisfactory to the Administrative Agent;
(vii) Copies of insurance certificates covering the Collateral, naming the Administrative Agent as additional insured or named loss payee, as applicable, and otherwise meeting the requirements of Section 5.5;
(viii) duly executed Mortgages granting the Administrative Agent a mortgage to secure the Obligations on the real property having a fair market value in excess of $250,000 owned in fee simple by the Borrower or its Subsidiaries described on Schedule 5 hereto, together with delivery to Administrative Agent of duly executed UCC-1 Financing Statements under the applicable Uniform Commercial Code, or other filings under applicable law, to be filed in connection with such Mortgage in form and substance satisfactory to Administrative Agent to perfect the Lien created by the Mortgage on any fixtures located on the real property covered by the Mortgage;
(ix) Proof of payment of all title insurance premiums, documentary stamp or intangible taxes, recording fees and mortgage taxes payable in connection with the recording of any of the Loan Documents or the issuance of the title insurance commitments referred to above (whether due on the Agreement Date or in the future) including such sums, if any, due in connection with any future Advances;
(x) Copies of all existing environmental reviews and audits with respect to all real property owned by the Borrower and other information pertaining to actual or potential environmental claims as Administrative Agent may require;
(xi) Opinions of general counsel, special counsel to the Manager and the Prior Borrower, special Alaska Public Utilities Commission counsel, and FCC counsel to the Borrower and its Subsidiaries, addressed to each Managing Agent, each Bank, and the Administrative Agent and satisfactory to each of them, dated the Agreement Date, in substantially the forms attached hereto as Exhibits N-1, N-2, N-3 and N-4, respectively;
(xii) A duly executed Request for Initial Advance of the Loans, in substantially the form attached hereto as Exhibit F-2;
(xiii) The duly executed Subordination and Assignment of Management Agreement, and corresponding UCC-1 financing statements;
(xiv) A duly executed Use of Proceeds Letter;
(xv) Copies of any Letters of Credit issued or outstanding on the Agreement Date;
(xvi) Pro forma financial statements for the Borrower and the Borrower's Subsidiaries as of the Agreement Date, with respect to the balance sheet, and as of June 30, 1996, with respect to the income statement;
(xvii) Copies of any pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the satisfaction of all Indebtedness of the Prior Borrower under the Prior Loan Agreement and the removal of any Liens against the assets of the Systems being acquired pursuant to the Rock and Cooke Acquisitions or against the Borrower which are not Permitted ▇▇▇▇s hereunder;
(xviii) A duly executed Certificate of Financial Condition, issued by the Borrower and its Subsidiaries as of the Agreement Date, and in substantially the form attached hereto as Exhibit O; and
(xix) Duly executed Borrower's Pledge Agreement, together with appropriate Stock Certificates and Stock Powers;
(xx) Duly executed Parent's Pledge Agreement, together with appropriate Stock Certificates and Stock Powers;
(xxi) Duly executed Subsidiary Security Agreement, given by each Subsidiary of the Borrower, together with appropriate UCC-1 financing statement forms;
(xxii) Duly executed Subsidiary Guaranty, given by each Subsidiary of the Borrower;
(xxiii) Duly executed Assignment of Partnership Interests, given by the Borrower and GCI Cable Holdings, Inc. as related to their general and limited partnership interests in Prime Cable of Alaska, L.P.;
(xxiv) All such other documents as any Managing Agent, the Administrative Agent, or any Bank may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) Completion of the GCI Acquisition and other transactions associated therewith, as well as the completion of all documentation associated therewith under terms satisfactory to the Administrative Agents, Managing Agents, and the Banks.
(c) The Managing Agents, the Administrative Agent, and the Banks shall have received evidence satisfactory to each of them that all Necessary Authorizations, other than any contained on Schedule 6 hereto, have been obtained or made, are in full force and effect and are not subject to any pending or threatened reversal or cancellation, and shall have received a certificate of an Authorized Signatory so stating. General Communication, Inc. - Form 8-K Page 194
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of The Administrative Agent, for itself, the Servicer certifying (i) as to its Constituent DocumentsManaging Agents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and Banks, shall have received all fees due on the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in Agreement Date from the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Borrower.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party; USActive 56468589.1056468589.17
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence reasonably satisfactory to it that (i) all fees and expenses due and owing to each Lender on or prior to the Closing Date and the structuring fee payable under the BNP Fee Letter have been received or will be received contemporaneously with the initial Advance; (ii) the reasonable and documented fees and out-of-pocket expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent and the Lenders, in connection with the transactions contemplated hereby; and (iii) the reasonable and documented out-of-pocket expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the making of the initial Advance, shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested prior to the Closing Date. USActive 56468589.1056468589.17
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone Private Credit Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests USActive 51774144.2053776213.6-65- and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested. USActive 51774144.2053776213.6-66-
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such -68- earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ares Capital Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its the initial Advance hereunder shall be of the Loans is subject to the satisfaction (or written waiver) fulfillment, in form and substance satisfactory to Lender and its counsel, of each of the following conditions set forth in Section 3.02 and 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 AgentDate:
(a) 3.1.1 Lender shall have received each of the Facility Documents (other than the Collateral Agent Fee LetterLoan Documents, which shall be delivered directly to the Collateral Agent) duly executed and delivered by a duly authorized officer of all of the parties thereto, which and each of the Loan Documents shall each be in full force and effect;.
3.1.2 Lender shall have a first priority lien or security interest in the Collateral (but only as to items (a), (b), (d), (e) true and complete copies (f) within the definition of the Constituent Documents of the Borrower, the Equityholder and the Servicer as Collateral in effect on the Closing Date;Article I hereof).
3.1.3 Lender shall have received (ca) a certificate of partnership status from the Secretary of State of Delaware with respect to each Borrower dated within a Responsible Officer reasonable amount of time of the Closing Date indicating that Borrower certifying is in good standing in such state; and (ib) as a certified copy of the limited partnership agreement for each Borrower including any and all restatements and amendments.
3.1.4 Lender shall have received fully executed resolutions of the partners of each Borrower authorizing each Borrower to its Constituent Documentsenter into the Loans and the Loan Documents and authorizing the general partner of each Borrower to execute the Loan Documents and all other documents and instruments to be executed in connection therewith.
3.1.5 No suit, (ii) as to its resolutions action, investigation, inquiry or other action proceeding (including, without limitation, the enactment or promulgation of its member approving this Agreement a statute or rule) by or before any arbitrator or any Governmental Authority shall be pending and the other Facility Documents to which it is no preliminary or permanent injunction or order by a party and state or federal court shall have been entered (a) in connection with any Loan Document or any of the transactions contemplated hereby and therebyor thereby or (b) which, in any such case, in the reasonable judgment of Lender, would have a material adverse effect on (iiii) that its the transactions contemplated by this Agreement or (ii) the business, operations, properties, condition (financial or otherwise) or prospects of Borrower or Guarantor.
3.1.6 Lender shall have received evidence of the policies of the insurance required by Section 5.4 of this Agreement.
3.1.7 Each of the representations and warranties set forth made in the Facility Documents or pursuant to Article IV of this Agreement or which it is a party are contained in any other Loan Document or any certificate, document or financial or other statement furnished by Borrowers at any time under or in connection herewith, shall be true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date (except unless stated to the extent such representations and warranties expressly relate to any a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or .
3.1.8 No Event of Default has shall have occurred and is continuingbe continuing on the Closing Date, nor shall either result from the making of any Loan or Advance.
3.1.9 Lender shall have determined that Borrowers and Guarantor have met all Requirements of Law which may adversely impact, as determined solely by Lender, the enforceability, validity or collectability of the Loans.
3.1.10 There has been no change that has a materially adverse effect on the business, operations, properties or condition (financial or otherwise) of Borrower or Guarantor or the prospects of Borrowers or Guarantor, taken as a whole since the date of the last financial statements of Borrowers delivered to Lender.
3.1.11 Lender shall have received appropriate UCC searches with respect to all personal property Collateral and such UCC termination statements as Lender may require.
3.1.12 Lender shall have received the written opinion of counsel for Borrowers, addressed to Lender in the form attached hereto as Exhibit 3.1.12.
3.1.13 Lender shall have completed and received all audits, inspections, valuations and examinations as deemed necessary in Lender's opinion with respect to the Collateral, and (v) as to the incumbency financial and specimen signature business condition of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Borrowers and Guarantor.
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or 3.1.14 All other action of its board of directors or members approving this Agreement documents and the other Facility Documents to which it is a party and legal matters in connection with the transactions contemplated hereby by this Agreement shall have been delivered, executed and therebyrecorded and shall be in form and substance satisfactory to Lender.
3.1.15 Lender shall have received commitments for ALTA mortgagee's title insurance policies, (iii) issued by a title insurance company acceptable to Lender, for each of the Sea Breeze Property and the High Point Property in an aggregate amount equal to $19,315,000.00, without standard exceptions, insuring that Lender's mortgage will constitute a valid first lien on the High Point Property, free and clear of all other liens and encumbrances, insuring that the Hell▇▇ ▇▇▇▇ ▇▇ the only lien on the Sea Breeze Property and reflecting the recordation of the Negative Pledge, and including such endorsements deemed necessary by Lender in its representations sole and warranties set forth in the Facility Documents to which it is a party are true reasonable discretion, including without limitation, comprehensive, usury, 3.1 zoning, tax parcel and correct in all material respects survey endorsements and such other endorsements as Lender shall require. Each such commitment shall indicate acceptable access and as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateDate, in which case such representations and warranties all property taxes then due shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature have been paid.
3.1.16 Lender shall have received a current survey of each of its Responsible Officers authorized the High Point Property and the Sea Breeze Property, prepared in accordance with Lender's survey requirements, certified to execute Lender and the Facility Documents title insurance company, by a registered land surveyor or engineer approved by Lender, and sufficient to permit the issuance of the commitment for title insurance policies in Section 3.1.15, showing the dimensions and area of the Property, the location of all roads, easements, rights-of-way and public access to or affecting either the High Point Property or the Sea Breeze Property, showing that the location and dimensions of the improvements are entirely within the High Point Property or the Sea Breeze Property, as applicable, that there are no encroachments upon the High Point Property or the Sea Breeze Property, showing individual homesites (which it is can be shown by using a party;site plan or aerial photo and not a metes and bounds description), but such surveys shall not be required to show individual utility hook-ups. Lender acknowledges that: (i) the survey dated September 25, 1996, last revised on July 10, 1997 prepared by KCI Technologies, Inc. with respect to the Sea Breeze Property; and (ii) the survey dated July 14, 1997 prepared by Gera▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇oc., Inc. with respect to the High Point Property are sufficient to satisfy the foregoing.
Appears in 1 contract
Sources: Loan Agreement (Sun Communities Inc)
Conditions Precedent to Initial Advance. (a) The obligation of each the Lender to make its the initial Advance hereunder shall be is subject to the following conditions precedent being satisfied, fulfilled or otherwise met to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 Lender at the time such initial Advance is requested and 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 Agentmade:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth made by the Credit Parties in the Facility Credit Documents to or which it is a party are true and correct contained in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier datecertificate furnished at any time under or in connection herewith, in which case such representations and warranties or therewith, shall be true and correct in all material respects on and as of the date of such Advance as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date), ;
(ivii) that no Default or Event of Default has shall have occurred and is continuingbe continuing on such date or after giving effect to such Advance and the Lender has received a certificate of a senior financial officer of the Borrower so certifying to the Lender;
(iii) immediately after giving effect to the making of any such Advance (and the application of the proceeds thereof), and the aggregate sum of the Advances shall not exceed the Commitment Amount;
(iv) there shall not exist any litigation, investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to any Credit Party or any of its Subsidiaries, or any Mining Property, which has had or could be expected to have, a Material Adverse Effect, or which could be expected to affect the legality, validity or enforceability of this Agreement or any other Credit Document, that has not been settled, dismissed, vacated, discharged or terminated;
(v) as the plaintiffs in the litigation matter 12 OC 00015 1B filed in the First Judicial Court of the State of Nevada in ▇▇▇▇▇▇ City shall have executed and delivered a consent addressed to the incumbency Lender and specimen signature the Borrower in form satisfactory to the Lender;
(vi) no Material Adverse Effect shall have occurred and the Lender has not become aware of any facts which, in the Lender’s opinion, could have a Material Adverse Effect;
(vii) each of the Security Documents has been duly executed and delivered by each party thereto and is in full force and effect enforceable against the Credit Parties, as applicable, in accordance with its respective terms;
(viii) delivery of all discharges, subordination agreements, waivers and confirmations as may be required by the Lender;
(ix) delivery of an irrevocable direction to pay with respect to the Advance;
(x) all fees (including the Structuring Fee owing under Section 2.1) and all other costs and expenses and other amounts then payable under any of the Credit Documents have been paid in full;
(xi) delivery of evidence that (i) the Lender is first loss payee and additional insured under the insurance policies of each of the Credit Parties in respect of the Borealis Project and (ii) such insurance policies are in compliance with Section 8.1(m);
(xii) delivery of a solvency certificate from the chief financial officer or the chief executive officer of the Borrower in the form of Exhibit D, certifying that none of the Credit Parties (i) is legally prohibited or restricted from entering into and performing its Responsible Officers authorized to execute obligations under the Facility Credit Documents to which it is a party, (ii) is unable to pay its debts as they become due in the ordinary course of business, (iii) will be rendered insolvent by virtue of any Advance to be made hereunder, (iv) will be left with an unreasonably small amount of capital or (v) has incurred Debt which cannot be satisfied on a timely basis;
(dxiii) [Reserved]delivery of a certificate of an officer of the Borrower certifying that all necessary Authorizations relating to the development and operation of the Mining Properties have been obtained and none have been rescinded, cancelled or otherwise terminated in any respect;
(exiv) [Reserved]evidence satisfactory to the Lender confirming the validity of the Security Documents and their application to the Loan and the Obligations as well as the validity and perfection of the Liens granted by such Security Documents with the Agreed Priority;
(fxv) the Lender shall have reviewed and approved the use of proceeds from the Advance, as such use of proceeds has been specified by the Borrower in the Borrowing Notice;
(xvi) all conditions set forth in Section 2.4, Section 2.5 and this Section 6.1 shall have been, and shall remain, satisfied to the satisfaction of the Lender in its sole discretion and the Borrower’s delivery of a Borrowing Notice shall constitute the Borrower’s representation and warranty that all such conditions precedent have been, and remain, satisfied);
(xvii) the Borrower shall have issued to the Lender 14,062,500 warrants all on terms and conditions satisfactory to the Lender, and for certainty, said warrants will be exercisable at an exercise price equal to $0.16(Canadian Dollars) and will have a term of three years (collectively, the “Warrants”) provided that the Lender shall have delivered to the Borrower an acknowledgement substantially in the form of Schedule 6.1(xvii);
(xviii) the Borrower shall have received all regulatory approvals from the Exchange and any other necessary Authorization with respect to the issuance of the Warrants;
(xix) a gold and silver supply agreement (in form and substance satisfactory to the Lender) between the Borrower and the Lender, permitting the Lender at its option, to purchase all of the Gold and Silver produced by the Borrower at any of its Mining Properties, shall have been fully executed and delivered to the Lender by the Borrower and each of the other Credit Parties as necessary (the “Gold and Silver Supply Agreement”);
(xx) receipt by the Lender of the following documents, each in full force and effect, and in form and substance satisfactory to the Lender:
(A) a Borrowing Notice requesting such Advance duly executed by the Borrower;
(B) all data, reports, maps, surveys, financial statements, Instruments and other information requested by the Lender, prior to the date of this Agreement, for its due diligence, including searches of all Lien filings, registrations and records deemed necessary by the Lender, and copies of any documents, filings and Instruments on file in such jurisdictions, shall have been provided, and the Lender shall have completed its technical, legal, financial, permitting, environmental and other due diligence investigation of the Credit Parties and the Mining Properties in scope, and with results, satisfactory to the Lender;
(C) executed copies of the Credit Documents, including this Agreement and the Security Documents, together with any filings or other Instruments for filing or registration or notarization thereof, notices with respect thereto or other Instruments determined by the Lender to be necessary or desirable to establish and perfect the Liens established pursuant to the Security Documents;
(D) certificates of status or other similar type of evidence for each Credit Party from all Relevant Jurisdictions;
(E) certified copies of the Constating Documents of each of the Credit Parties;
(F) certified copies of all Material Contracts;
(G) a certified copy of the directors’ resolutions of each of the Credit Parties with respect to the authorization, execution and delivery of the Credit Documents, to which each is a party, being delivered in connection herewith;
(H) a certificate of a Responsible Officer an officer of each Credit Party certifying the names and the true signatures of the Servicer certifying officers authorized to sign the Credit Documents;
(I) satisfactory searches of all mineral rights and other interests of the Borrower in respect of the Mining Properties;
(J) opinions of the counsel to each of the Credit Parties relating to, among other things, (i) as to its Constituent Documentsthe subsistence of each of the Credit Parties, (ii) the due authorization, execution, delivery and enforceability of the Credit Documents, (iii) the creation, perfection and registration of the Liens under the Security Documents, and (iv) the Warrants;
(K) releases, discharges and postponements (in registrable form where appropriate) covering Liens affecting any of the Secured Assets which are not Permitted Liens, if any;
(L) a title report of the Borrower’s counsel with respect to the Borealis Project, as at March 12, 2012 and dated April 6, 2012 or such other date as the Lender may require and addressed to the Lender in form and substance reasonably acceptable to the Lender;
(M) accurate and complete copies of the most recent consolidated financial statements of the Borrower, including the accounts of the Guarantor;
(N) all regulatory approvals to the transactions contemplated within each of the Credit Documents; and
(O) such other documents, certificates, opinions and agreements which the Lender may reasonably request;
(xxi) the Lender shall have completed and be satisfied with its resolutions or financial, business, environmental, tax and other action due diligence review of each of the Credit Parties, including, without limitation, its board review of directors or members approving feasibility studies, mine plans, budgets, pro forma financial statements and all Material Contracts and other documents in respect of the Borealis Project;
(xxii) all Authorizations of Governmental Entities and/or any other Persons required in connection with this Agreement and the other Facility Credit Documents shall have been obtained and remain in effect;
(xxiii) each Credit Party has performed and complied with all agreements and conditions herein and in the other Credit Documents required to which it is a party be performed and complied with on or prior to the date of the proposed Advance, except those agreements and conditions waived by the Lender; and
(xxiv) evidence that all Liens created pursuant to the Security Documents have been duly perfected and registered in all Relevant Jurisdictions and any other relevant jurisdiction as required by the Lender and the transactions contemplated hereby Lender’s Counsel. Each Borrower request for an Advance shall be deemed to constitute a representation and thereby, (iii) that its representations and warranties set forth in warranty by the Facility Documents to which it is a party are true and correct in all material respects Borrower 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 date of such earlier date)Advance that the applicable conditions in paragraph (a) above, have been, and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;remain satisfied.
Appears in 1 contract
Sources: Loan Agreement (Gryphon Gold Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;any
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement Accounts and the other Facility Documents to which it is a party Collateral 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 provide any other requested information reasonably available to the extent such representations Collateral Agent and warranties expressly relate required to be provided by Section 8.07 or to permit the Servicer to perform its obligations hereunder or the Borrower’s obligations hereunder that have been delegated to the Servicer. The Collateral Agent shall promptly forward to the Servicer copies of notices and other writings received by it from the Obligor of any Collateral Loan or from any Clearing Agency with respect to any earlier date, in Collateral Loan which case such representations and warranties shall be true and correct in all material respects as notices or writings advise the holders of such earlier date), Collateral Loan of any rights that the holders might have with respect thereto (including requests to vote with respect to amendments or waivers and (ivnotices of prepayments and redemptions) as well as all periodic financial reports received from such Obligor and Clearing Agency with respect to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;such Obligor.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Collateral Manager as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member the General Partner, acting as general partner of the Borrower approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its board the member of directors or members the Collateral Manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(e) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(f) 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 granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(g) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Collateral Manager, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(h) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(i) evidence reasonably satisfactory to it that (i) all fees and expenses due and owing to each Lender on or prior to the Closing Date and the structuring fee payable under the BNP Fee Letter have been received or will be received contemporaneously with the initial Advance; (ii) the reasonable and documented fees and out-of-pocket expenses of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US LLP, counsel to the Administrative Agent and the Lenders, in connection with the transactions contemplated hereby; and (iii) the reasonable and documented out-of-pocket expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the making of the initial Advance, shall have been paid by the Borrower;
(j) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(k) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(l) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested prior to the Closing Date; provided that nothing in this clause (l) shall imply or impose a duty on the part of the Collateral Agent to require any other documents.
Appears in 1 contract
Conditions Precedent to Initial Advance. (a) The obligation of each the Lender to make its the initial Advance hereunder shall be is subject to the following conditions precedent being satisfied, fulfilled or otherwise met to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 Lender at the time such initial Advance is requested and 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 Agentmade:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth made by the Credit Parties in the Facility Credit Documents to or which it is a party are true and correct contained in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier datecertificate furnished at any time under or in connection herewith, in which case such representations and warranties or therewith, shall be true and correct in all material respects on and as of the date of such Advance as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date), ;
(ivii) that no Default or Event of Default has shall have occurred and is continuingbe continuing on such date or after giving effect to such Advance and the Lender has received a certificate of a senior financial officer of the Borrower so certifying to the Lender;
(iii) immediately after giving effect to the making of any such Advance (and the application of the proceeds thereof), and the aggregate sum of the Advances shall not exceed the Commitment Amount;
(iv) there shall not exist any litigation, investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to any Credit Party or any of its Subsidiaries, or any Mining Property, which has had or could be expected to have, a Material Adverse Effect, or which could be expected to affect the legality, validity or enforceability of this Agreement or any other Credit Document, that has not been settled, dismissed, vacated, discharged or terminated;
(v) as the plaintiffs in the litigation matter 12 OC 00015 1B filed in the First Judicial Court of the State of Nevada in ▇▇▇▇▇▇ City shall have executed and delivered a consent addressed to the incumbency Lender and specimen signature the Borrower in form satisfactory to the Lender;
(vi) no Material Adverse Effect shall have occurred and the Lender has not become aware of any facts which, in the Lender’s opinion, could have a Material Adverse Effect;
(vii) each of the Security Documents has been duly executed and delivered by each party thereto and is in full force and effect enforceable against the Credit Parties, as applicable, in accordance with its respective terms;
(viii) delivery of all discharges, subordination agreements, waivers and confirmations as may be required by the Lender;
(ix) delivery of an irrevocable direction to pay with respect to the Advance;
(x) all fees (including the Structuring Fee owing under Section 2.1) and all other costs and expenses and other amounts then payable under any of the Credit Documents have been paid in full;
(xi) delivery of evidence that (i) the Lender is first loss payee and additional insured under the insurance policies of each of the Credit Parties in respect of the Borealis Project and (ii) such insurance policies are in compliance with Section 8.1(m);
(xii) delivery of a solvency certificate from the chief financial officer or the chief executive officer of the Borrower in the form of Exhibit D, certifying that none of the Credit Parties (i) is legally prohibited or restricted from entering into and performing its Responsible Officers authorized to execute obligations under the Facility Credit Documents to which it is a party, (ii) is unable to pay its debts as they become due in the ordinary course of business, (iii) will be rendered insolvent by virtue of any Advance to be made hereunder, (iv) will be left with an unreasonably small amount of capital or (v) has incurred Debt which cannot be satisfied on a timely basis;
(dxiii) [Reserved]delivery of a certificate of an officer of the Borrower certifying that all necessary Authorizations relating to the development and operation of the Mining Properties have been obtained and none have been rescinded, cancelled or otherwise terminated in any respect;
(exiv) [Reserved]evidence satisfactory to the Lender confirming the validity of the Security Documents and their application to the Loan and the Obligations as well as well as the validity and perfection of the Liens granted by such Security Documents with the Agreed Priority;
(fxv) the Lender shall have reviewed and approved the use of proceeds from the Advance, as such use of proceeds has been specified by the Borrower in the Borrowing Notice;
(xvi) all conditions set forth in Section 2.4, Section 2.5 and this Section 6.1 shall have been, and shall remain, satisfied to the satisfaction of the Lender in its sole discretion and the Borrower’s delivery of a Borrowing Notice shall constitute the Borrower’s representation and warranty that all such conditions precedent have been, and remain, satisfied);
(xvii) the Borrower shall have issued to the Lender 14,062,500 warrants all on terms and conditions satisfactory to the Lender, and for certainty, said warrants will be exercisable at an exercise price equal to $0.16(Canadian Dollars) and will have a term of three years (collectively, the “Warrants”) provided that the Lender shall have delivered to the Borrower an acknowledgement substantially in the form of Schedule 6.1(xvii);
(xviii) the Borrower shall have received all regulatory approvals from the Exchange and any other necessary Authorization with respect to the issuance of the Warrants;
(xix) a gold and silver supply agreement (in form and substance satisfactory to the Lender) between the Borrower and the Lender, permitting the Lender at its option, to purchase all of the Gold and Silver produced by the Borrower at any of its Mining Properties, shall have been fully executed and delivered to the Lender by the Borrower and each of the other Credit Parties as necessary (the “Gold and Silver Supply Agreement”);
(xx) receipt by the Lender of the following documents, each in full force and effect, and in form and substance satisfactory to the Lender:
(A) a Borrowing Notice requesting such Advance duly executed by the Borrower;
(B) all data, reports, maps, surveys, financial statements, Instruments and other information requested by the Lender, prior to the date of this Agreement, for its due diligence, including searches of all Lien filings, registrations and records deemed necessary by the Lender, and copies of any documents, filings and Instruments on file in such jurisdictions, shall have been provided, and the Lender shall have completed its technical, legal, financial, permitting, environmental and other due diligence investigation of the Credit Parties and the Mining Properties in scope, and with results, satisfactory to the Lender;
(C) executed copies of the Credit Documents, including this Agreement and the Security Documents, together with any filings or other Instruments for filing or registration or notarization thereof, notices with respect thereto or other Instruments determined by the Lender to be necessary or desirable to establish and perfect the Liens established pursuant to the Security Documents;
(D) certificates of status or other similar type of evidence for each Credit Party from all Relevant Jurisdictions;
(E) certified copies of the Constating Documents of each of the Credit Parties;
(F) certified copies of all Material Contracts;
(G) a certified copy of the directors’ resolutions of each of the Credit Parties with respect to the authorization, execution and delivery of the Credit Documents, to which each is a party, being delivered in connection herewith;
(H) a certificate of a Responsible Officer an officer of each Credit Party certifying the names and the true signatures of the Servicer certifying officers authorized to sign the Credit Documents;
(I) satisfactory searches of all mineral rights and other interests of the Borrower in respect of the Mining Properties;
(J) opinions of the counsel to each of the Credit Parties relating to, among other things, (i) as to its Constituent Documentsthe subsistence of each of the Credit Parties, (ii) the due authorization, execution, delivery and enforceability of the Credit Documents, (iii) the creation, perfection and registration of the Liens under the Security Documents, and (iv) the Warrants;
(K) releases, discharges and postponements (in registrable form where appropriate) covering Liens affecting any of the Secured Assets which are not Permitted Liens, if any;
(L) a title report of the Borrower’s counsel with respect to the Borealis Project, as at March 12, 2012 and dated April 6, 2012 or such other date as the Lender may require and addressed to the Lender in form and substance reasonably acceptable to the Lender;
(M) accurate and complete copies of the most recent consolidated financial statements of the Borrower, including the accounts of the Guarantor;
(N) all regulatory approvals to the transactions contemplated within each of the Credit Documents; and
(O) such other documents, certificates, opinions and agreements which the Lender may reasonably request;
(xxi) the Lender shall have completed and be satisfied with its resolutions or financial, business, environmental, tax and other action due diligence review of each of the Credit Parties, including, without limitation, its board review of directors or members approving feasibility studies, mine plans, budgets, pro forma financial statements and all Material Contracts and other documents in respect of the Borealis Project;
(xxii) all Authorizations of Governmental Entities and/or any other Persons required in connection with this Agreement and the other Facility Credit Documents shall have been obtained and remain in effect;
(xxiii) each Credit Party has performed and complied with all agreements and conditions herein and in the other Credit Documents required to which it is a party be performed and complied with on or prior to the date of the proposed Advance, except those agreements and conditions waived by the Lender; and
(xxiv) evidence that all Liens created pursuant to the Security Documents have been duly perfected and registered in all Relevant Jurisdictions and any other relevant jurisdiction as required by the Lender and the transactions contemplated hereby Lender’s Counsel. Each Borrower request for an Advance shall be deemed to constitute a representation and thereby, (iii) that its representations and warranties set forth in warranty by the Facility Documents to which it is a party are true and correct in all material respects Borrower 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 date of such earlier date)Advance that the applicable conditions in paragraph (a) above, have been, and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;remain satisfied.
Appears in 1 contract
Sources: Loan Agreement (Gryphon Gold Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Collateral Manager as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member the General Partner, acting as general partner of the Borrower approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its board the member of directors or members the Collateral Manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(e) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(f) 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 granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(g) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Collateral Manager, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(h) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(i) evidence reasonably satisfactory to it that (i) all fees and expenses due and owing to each Lender on or prior to the Closing Date and the structuring fee payable under the BNP Fee Letter have been received or will be received contemporaneously with the initial Advance; (ii) the reasonable and documented fees and out-of-pocket expenses of ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Administrative Agent and the Lenders, in connection with the transactions contemplated hereby; and (iii) the reasonable and documented out-of-pocket expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the making of the initial Advance, shall have been paid by the Borrower;
(j) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have has received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Administrator and Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (OFS Capital Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any USActive 54953942.1755479929.4-80- applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(k) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and USActive 54953942.1755479929.4-81-
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ares Capital Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject As conditions precedent to the satisfaction (or written waiver) of Initial Advance under the conditions set forth in Section 3.02 and Facility by 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 AgentLender:
(a) each of the Facility Documents Borrower will have:
(other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agenti) duly executed and delivered by to the parties thereto, which shall each be Lender a Drawing Notice prior to the date of the Initial Advance; and
(ii) executed and delivered to the Lender a promissory note in full force and effectthe form attached hereto as Schedule “B” (the “Note”) in the principal amount of the Initial Advance;
(b) true the Credit Parties will have:
(i) executed and complete delivered or caused to be executed and delivered all of the security documents referred to in paragraph 9 above and the documents, securities and instruments referred therein, except that security referred to in subparagraph 9(d) above, and the Lender will have completed all registrations and other filings that may be prudent or necessary to perfect the Lender’s security therein;
(ii) delivered certified copies of their directors’ resolutions authorizing the Constituent Documents borrowing or guaranteeing of the BorrowerFacility, as the case may be, the Equityholder grant of the Security and the Servicer as execution and delivery of this Agreement and all agreements, documents and instruments referred to herein, together with officer’s certificates, certifying certain factual matters; and
(iii) caused to be executed and delivered legal opinions of the Credit Parties’ Canadian and United States counsel, in effect on form and terms satisfactory to the Closing DateLender and its counsel, acting reasonably;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Credit Parties contained in which case such representations and warranties shall paragraph 12 will be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as the Credit Parties will have complied with all covenants required to be complied with by them prior to the incumbency and specimen signature of each of its Responsible Officers authorized to execute Initial Advance under the Facility Documents by the Lender (including but not limited to which it is a partythe payment of the Structuring Fee, the Standby Fee and that portion of the Bonus payable in connection with the Initial Advance);
(d) [Reserved]there shall have been no adverse material change in the business, operations, assets or ownership of the Credit Parties or any of their respective Subsidiaries, taken as a whole, since the date of the Term Sheet;
(e) [Reserved]the Lender will have completed and, in its sole and absolute discretion, be satisfied with its due diligence review of the Credit Parties and their respective Subsidiaries, properties and assets, including but not limited to the Hycroft Mine and all valuations, mine plans, budgets, permits and pro forma financial statements in respect thereof, and shall have satisfactorily completed a site visit of the Hycroft Mine;
(f) a certificate of a Responsible Officer the Lender will, in its sole and absolute discretion, be satisfied as to the creditworthiness of the Servicer certifying Credit Parties and their respective Subsidiaries and the adequacy of the collateral security contemplated herein;
(ig) as to its Constituent Documents, the Lender shall have completed the syndication of the Facility; and
(iih) as to its resolutions or other action the Lender shall have received the approval of its board of directors directors; all in form and terms satisfactory to the Lender and its counsel. If any of the foregoing conditions precedent are not satisfied or members approving waived by the Lender in writing on or before March 18, 2008, this Agreement will terminate, 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 Lender will be under no further obligation to the extent such representations and warranties expressly relate to any earlier date, Credit Parties in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to connection with the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;transaction contemplated herein.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Collateral Manager as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member the General Partner, acting as general partner of the Borrower approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its board the member of directors or members the Collateral Manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(e) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(f) 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 granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(g) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Collateral Manager, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(h) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(i) evidence reasonably satisfactory to it that (i) all fees and expenses due and owing to each Lender on or prior to the Closing Date and the structuring fee payable under the BNP Fee Letter have been received or will be received contemporaneously with the initial Advance; (ii) the reasonable and documented fees and out-of-pocket expenses of ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Administrative Agent and the Lenders, in connection with the transactions contemplated hereby; and (iii) the reasonable and documented out-of-pocket expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the making of the initial Advance, shall have been paid by the Borrower;
(j) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(k) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(l) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested prior to the Closing Date; provided that nothing in this clause (l) shall imply or impose a duty on the part of the Collateral Agent to require any other documents.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (HPS Corporate Lending Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender In addition to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and 6.2, Lender shall not be required to fund any requested Advance until each of 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 Agenthas been satisfied:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which Each Loan Document shall be delivered directly to the Collateral Agent) have been duly executed and delivered to Lender by each of the parties signatories thereto, which and Borrower and Guarantors shall each be in full force and effect;compliance with all terms thereof.
(b) true Lender shall have received a certificate, in form and complete substance satisfactory to it, from a Responsible Officer certifying:
(i) as to (A) copies of Borrower’s certificate of incorporation filed with the Constituent Documents State of the Delaware, and Borrower’s by-laws, the Equityholder and the Servicer each as in effect on the Closing Date;
, (cB) a certificate all resolutions adopted by the Borrower’s board of a Responsible Officer directors authorizing the execution and delivery of the Borrower certifying Loan Documents and any other resolutions adopted with respect to this credit facility, and (iC) as to its Constituent the incumbency (including specimen signatures) of the Responsible Officers executing the Loan Documents, ; and
(ii) as that, after giving effect to its resolutions or other action of its member approving this Agreement the initial Advance and the other Facility Documents to which it is a party and the transactions contemplated hereby and therebyhereunder, (iiiA) that its no Default or Event of Default exists; (B) the representations and warranties set forth in the Facility Documents to which it is a party Section 7 are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, respects; and (vC) as Borrower has complied with all agreements and conditions to be satisfied by it under the incumbency Loan Documents.
(c) Lender shall have completed its business, financial and specimen signature legal due diligence of each Borrower with results satisfactory to Lender. No material adverse change in the financial condition of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Borrower shall have occurred since March 31, 2019.
(d) [Reserved];Borrower shall have paid all fees and expenses to be paid to Lender under this Agreement on the Closing Date.
(e) [Reserved];
(f) a certificate of a Responsible Officer of Borrower shall have issued and delivered to Lender the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Warrant.
Appears in 1 contract
Sources: Loan Agreement (Audioeye Inc)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent and Collateral Administrator Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Collateral Manager as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Lord Abbett Private Credit Fund S)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be -91- true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Barings Private Credit Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member 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) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved]a recently dated certificate of good standing of the Borrower issued by the Secretary of State of the State of Delaware;
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying Equityholder, in its capacity as Equityholder, certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (ivv) 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 Servicer, in its capacity as Servicer, certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the initial Advance; (ii) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;
(l) if applicable, delivery of such Collateral (including any promissory note, executed assignment agreements and word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement and the definition of “Delivered” shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Pennantpark Investment Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the following conditions precedent before or concurrently with the Closing Date:
(a) Before giving effect to the transactions contemplated by this Agreement, there shall have occurred no Material Adverse Change since November 30, 1997.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the Administrative Agent matters described on the Disclosure Schedule (the "DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of this Agreement, the Note, any other Loan Document or the consummation of the transactions contemplated hereby.
(c) Borrower shall have paid all accrued expenses of Lender which Borrower is required to pay under the Loan Documents (including the accrued, reasonable fees and expenses of counsel to Lender).
(d) Lender shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent:Lender (unless otherwise specified):
(ai) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly The Note payable to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;order of Lender.
(bii) true and complete Certified copies of the Constituent Documents resolutions of the BorrowerBoard of Directors of Borrower approving this Agreement, the Equityholder Note and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or each other action of its member approving this Agreement and the other Facility Documents Loan Document to which it is or is to be a party, and of all documents evidencing other necessary action and governmental and other third party approvals and consents, if any, with respect to the transactions contemplated hereby Advances, this Agreement, the Note and thereby, each other Loan Document.
(iii) that its representations and warranties set forth A copy of the Organizational Documents of Borrower, together with each amendment thereto, and, in the Facility Documents to which it is case of the certificate of incorporation of Borrower, certified (as of the Closing Date) by the Secretary of State of the jurisdiction of its formation or incorporation as being a party are true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of its formation, dated reasonably near the Closing Date, certifying that (A) Borrower has paid all franchise taxes to the date of such certificate and (B) Borrower is duly incorporated or formed and in good standing under the laws of the State of the jurisdiction of its organization.
(v) A certificate of Borrower, signed on behalf of the Borrower by a duly authorized officer of Borrower, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (except B) the absence of any event occurring and continuing, or resulting from any Advance, that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant Secretary of an authorized officer of Borrower certifying the names and true signatures of the officers of Borrower authorized to sign this Agreement, the Note and each other Loan Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vii) A security agreement in form and substance satisfactory to Lender pledging to Lender and granting Lender a security interest in all of Borrower's right, title and interest in the Collateral described therein (such agreement, as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "SECURITY AGREEMENT"), duly executed by Borrower, together with:
(A) acknowledgment copies of proper financing statements, delivered for filing on or before the Closing Date under the Uniform Commercial Code of the State of Florida, as well as any other jurisdictions deemed necessary or desirable by Lender, covering the Collateral described in the Security Agreement,
(B) completed requests for information, dated on or before the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (A) above that name Borrower as debtor, together with copies of such other financing statements, and
(C) evidence of the completion of all other recordings and filings of or with respect to the extent such representations Security Agreement that Lender may deem necessary or desirable in order to perfect and warranties expressly relate protect the Liens created thereby.
(viii) The Side Letter, duly executed by Borrower.
(ix) The Keepwell Agreement, duly executed by Borrower.
(x) A favorable opinion of (A) Bilzin Sumberg Dunn Price & Axelrod LLP with respect to any earlier datethe valid exi▇▇▇▇▇▇, ▇▇▇ authoriza▇▇▇▇ ▇▇d execution of the Loan Documents by Borrower and (B) Bilzin Sumberg Dunn Price & Axelrod LLP, special counsel for Borrower, ▇▇▇▇ r▇▇▇▇ct to the ▇▇▇▇▇▇eability of the Loan Documents, in which case such representations and warranties shall be true and correct each case, in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as form satisfactory to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];Lender.
(e) [Reserved];
(f) a certificate of a Responsible Officer of Borrower shall have Facility Equity in an amount equal to or greater than the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Minimum Collateral Value.
Appears in 1 contract
Sources: Credit Agreement (LNR Property Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral granted by the Borrower, the Equityholder or any transferor prior to the Closing Date;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Barings Private Credit Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender the Finance Provider to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent Finance Provider shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative AgentFinance Provider:
(a) each of the Facility Documents Instalment Payment Agreement and the Program Agreements (other than the Collateral Agent Fee LetterAccount Control Agreements), which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents organizational documents of the Borrower, the Equityholder and the Servicer Company as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower Company certifying (i) as to its Constituent Documentsorganizational documents and good standing certificate, (ii) as to its resolutions or other action of its member Board of Directors approving the Instalment Payment Agreement and this Agreement and the other Facility Documents Program Agreements to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents Instalment Payment Agreement and the Program Agreements to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers officers or directors authorized to execute the Facility Documents Instalment Payment Agreement and the Program Agreements to which it is a party;
(d) [Reserved]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 Finance Provider deems necessary or desirable in order to perfect its interests in the Collateral contemplated by this Agreement, the other Program Agreements and the Instalment Payment Agreement;
(e) the payoff letter, termination letter or similar agreement in relation to the Indebtedness facility between the Company and [Reserved*], duly executed and delivered by such Persons, in form and substance satisfactory to the Finance Provider in its sole discretion;
(f) a certificate legal opinions (addressed to the Finance Provider) of a Responsible Officer counsel to the Company, covering such matters as the Finance Provider and its counsel shall reasonably request;
(g) evidence reasonably satisfactory to the Finance Provider that each Designated Account shall have been established;
(h) provision of information relating to any reasonable requests made by the Servicer certifying Finance Provider for information relating to “know your customer”, anti-money laundering and sanctions rules and regulations requirements; and
(i) as to its Constituent Documents, payment of (i) the Upfront Fee; (ii) as the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and Finance Provider, in connection with the transactions contemplated hereby (to the extent invoiced at least one Business Day prior the Closing Date); and thereby, (iii) all other reasonable and documented up-front expenses and fees that its representations are invoiced at least one Business Day prior to the Closing Date (in the case of each of clauses (ii) and warranties (iii) to the extent payable by the Company pursuant to Section 8.04(a)), which amounts, in each case, shall be netted against the initial Advance. The Finance Provider acknowledges that each of the conditions specified in this Section 3.01 (except for the condition set forth in the Facility Documents to immediately preceding clause (i), which it is a party are true and correct in all material respects will be satisfied as of the making of the initial Advance) have been satisfied as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Date.
Appears in 1 contract
Sources: Program Side Agreement (CF Finance Acquisition Corp II)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have has received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Administrator and Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) subject to the proviso in clause (i) of Section 13.04(a) evidence that, on or prior to the Business Day following Closing Date, (i) all fees and expenses due and payable to each Lender on or prior to such date, evidence of which has been received or will be received contemporaneously with such payment; (ii) the reasonable and documented fees and out-of-pocket expenses of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior to such date); (iii) the Structuring Fee; and (iv) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Administrator and Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iv), invoiced at least one Business Day prior to the Closing Date, have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (OFS Capital Corp)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date (unless otherwise specified) the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsDocuments as of the Closing Date, (ii) as to its resolutions or other action of its member designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingcontinuing as of the Closing Date, and (v) as to the incumbency and specimen signature of each of its Responsible Officers as of the Closing Date authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone Private Credit Fund)
Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the satisfaction (or written waiver) of the conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter, which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer Services Provider as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its member approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer Services Provider certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(f) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(g) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Services Provider, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(h) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Securities Intermediary and shall be in full force and effect;
(i) evidence that (i) all invoiced fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced on or prior the Closing Date) shall have been paid by the Borrower; and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter), in each case, that are invoiced at least one Business Day prior to the Closing Date shall have been paid by the Borrower; provided that, with respect to the out-of-pocket costs and expenses of the Lenders incurred prior to the Closing Date in connection with the initial preparation of the Facility Documents, the Borrower shall not be required to reimburse the Lenders for more than $250,000 of such costs and expenses on the Closing Date;
(j) delivery of such Collateral (including any promissory note, executed assignment agreements and MS Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(k) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon the grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement;
(l) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; and
(m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; provided that nothing in this clause (m) shall imply or impose a duty on the part of the Collateral Agent to require any other documents.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blue Owl Credit Income Corp.)