Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion: (a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor. (b) The Note shall have been duly executed and delivered by the Borrower. (c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto. (d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto. (e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto. (f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan. (g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind. (h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above. (i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement. (j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date. (k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects. (l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law. (m) The Lenders shall have received the Unaudited Financial Statements. (n) The Borrower shall have established the Interest Reserve Account. (o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date). (p) [intentionally omitted] (q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent. (r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent. (s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 3 contracts
Sources: Credit Agreement (Vivint Solar, Inc.), Credit Agreement (Vivint Solar, Inc.), Credit Agreement (Vivint Solar, Inc.)
Conditions Precedent. Each Lender This Amendment shall make the Loans to not be made by it on the Closing Date subject only to the following conditions precedent, effective unless otherwise waived by the Lenders in their sole discretionand until:
(a) This Agreement shall have been duly the Administrative Agent receives fully executed and delivered counterparts of this Amendment signed by the Borrower Loan Parties, the Administrative Agent and each Guarantor.the Required Lenders;
(b) The Note shall the Administrative Agent receives a certificate of a Responsible Officer of each Loan Party certifying (i) the incorporation, formation and organization documents, as the case may be, of such Loan Party (or that there have been duly no changes thereto since the date last certified to the Administrative Agent), (ii) resolutions or other action of such Loan Party authorizing this Amendment and the other documents executed and delivered by the Borrower.Loan Parties in connection herewith, (iii) the identity, authority, incumbency and signatures of each Responsible Officer executing this Amendment and any other document executed in connection herewith, and (iv) such other matters as the Administrative Agent may reasonably require;
(c) Each Collateral Document shall have been duly executed and delivered by each the Administrative Agent receives evidence dated within thirty (30) days as of the parties thereto.date hereof that each Loan Party is validly existing and in good standing in its jurisdiction of incorporation, formation or organization, as the case may be;
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received receives a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & counsel of ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case Lender and in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided reasonably acceptable to the Administrative Agent;
(e) upon the reasonable request of any Lender made at least five (5) days prior to the date hereof, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement Borrower shall have been duly executed provided to such Lender, and delivered by each Loan Party that is to such Lender shall be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Datesatisfied with, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities so requested in connection with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered , in each case at least 10 two (2) days prior to the Closing Date and are not unduly burdensome on date hereof;
(f) at least five (5) days prior to the date hereof, any person unless Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation as set forth in 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall have delivered, to each Lender that so requests, a certification regarding beneficial ownership required by applicable Law.the Beneficial Ownership Regulation in relation to such Loan Party (a “Beneficial Ownership Certification”);
(mg) The Lenders the representations and warranties in the Credit Agreement, as amended by this Amendment, and each other Loan Document are true and correct in all material respects on and as of the date of this Amendment as though made as of the date of this Amendment except to the extent that (i) any of them speak to a different specific date, in which case they shall be true and correct in all material respects on and as of such earlier date; provided, that for purposes of this Amendment, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, or (ii) the facts on which any of them were based have received been changed by transactions contemplated or permitted by the Unaudited Financial Statements.Credit Agreement;
(nh) The the Administrative Agent receives payment of all reasonable fees and expenses of the Administrative Agent in connection with this Amendment;
(i) the Borrower shall have established paid to the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and Administrative Agent, for the BAML Engagement Letter benefit of the Credit Parties, all fees required to be paid on or before the Closing Date date hereof in connection with this Amendment;
(j) the Borrower and the Parent REIT shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americasentered into amendments to all Specified Debt, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower each in form and substance acceptable reasonably satisfactory to the Administrative Agent., as necessary to conform the applicable terms of such Specified Debt to the amendments set forth herein;
(rk) The the Administrative Agent and the holders (or an authorized representative thereof) of all Specified Debt shall have received evidence that a UCC-3 termination statement terminating entered into the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.Intercreditor Agreement; and
(sl) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable after giving effect to the Administrative Agentthis Amendment, no Default or Event of Default exists.
Appears in 3 contracts
Sources: Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust)
Conditions Precedent. Each The obligation of each Lender shall to make the Loans any Loan hereunder is subject to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Borrower and each GuarantorAdministrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Note representations and warranties of each Loan Party contained in Article V or any other Loan Document shall have been duly executed be true and delivered by correct in all material respects on and as of the BorrowerClosing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date.
(c) Each Collateral Document No Default shall have been duly executed and delivered by each exist or would result from the making or such Loans or from the application of the parties theretoproceeds therefrom.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior hereof.
(e) The Amended and Restated Security Agreement shall be executed by the First Lien Collateral Agent, the Borrower and the Subsidiary Loan Parties in the form attached hereto as Exhibit E, together with such changes as shall be reasonably acceptable to the requested date for funding Borrower, the Administrative Agent, the Initial Required Lenders, and the First Lien Collateral Agent and the Administrative Agent shall have received any additional security documents (other than those relating to foreign collateral) necessary to ensure that the Loan Obligations are ratably secured on the Collateral in a manner consistent with the Amended and Restated Security Agreement.
(f) The Intercreditor Agreement shall be executed by the First Lien Collateral Agent, the administrative agent under the Credit Agreement and the Administrative Agent in the form attached hereto as Exhibit F, together with such Loanchanges as shall be reasonably acceptable to the Borrower, the Administrative Agent, the Initial Required Lenders, and the administrative agent under the Credit Agreement.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent itself and the LendersLenders on the Closing Date, an opinion in form and substance reasonably satisfactory to the Administrative Agent of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ O’Melveny & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindParties.
(h) The Administrative Agent shall have received a Perfection Certificate, executed by the Borrower as of the Closing Date.
(i) a copy of The Administrative Agent shall have received in the certificate or articles of incorporation or organization, including all amendments thereto, case of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (iii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the (x) its charter, by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Dateother organizational document, (By) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors of such Loan Party (or equivalent governing bodyits managing general partner, managing member or equivalent) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown effect on the certificate of the Secretary of State furnished pursuant to clause (i) aboveClosing Date, and (Dz) a good standing certificate from the applicable Governmental Authority of its jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Closing Date, and
(B) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of any such Loan Party and countersigned by another Party;
(j) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (iii) above.;
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(jk) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by from the Loan Parties Parties’ insurance broker or other evidence reasonably satisfactory to it that all insurance required to be maintained pursuant to the Senior Credit Facilities in Article V shall be true full force and correct in all material respects.effect; and
(l) The Lenders Borrower shall have received all documentation and other information required by regulatory authorities with respect paid to the Borrower reasonably requested Administrative Agent and each Lender all fees, costs and expenses which are payable hereunder or pursuant to any fee letter executed by any Loan Party in connection with this Agreement and the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawtransactions contemplated hereby.
(m) The Lenders Schedules and exhibits reasonably acceptable to the Initial Required Lenders, the Borrower and the Administrative Agent shall have received been annexed to this Agreement. It is acknowledged and agreed that the Unaudited Financial Statementsexisting schedules and exhibits the Credit Agreement are acceptable to the Required Lenders and the Administrative Agent.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date Credit Agreement shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable amended to the Administrative Agentextent necessary to ensure that the terms thereof do not conflict with this Agreement and the other Loan Documents.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 3 contracts
Sources: Senior Secured Loan Agreement (Nielsen Holdings B.V.), Senior Secured Loan Agreement (Nielsen Holdings B.V.), Senior Secured Loan Agreement (Nielsen CO B.V.)
Conditions Precedent. Each Lender This Amendment shall make the Loans to not be made by it on the Closing Date subject only to the following conditions precedent, effective unless otherwise waived by the Lenders in their sole discretionand until:
(a) This Agreement shall have been duly the Administrative Agent receives fully executed and delivered counterparts of this Amendment signed by the Borrower Loan Parties, the Administrative Agent and each Guarantor.the Required Lenders;
(b) The Note shall the Administrative Agent receives a certificate of a Responsible Officer of each Loan Party certifying (i) the incorporation, formation and organization documents, as the case may be, of such Loan Party (or that there have been duly no changes thereto since the date last certified to the Administrative Agent), (ii) resolutions or other action of such Loan Party authorizing this Amendment and the other documents executed and delivered by the Borrower.Loan Parties in connection herewith, (iii) the identity, authority, incumbency and signatures of each Responsible Officer executing this Amendment and any other document executed in connection herewith, and (iv) such other matters as the Administrative Agent may reasonably require;
(c) Each Collateral Document shall have been duly executed and delivered by each the Administrative Agent receives evidence dated within thirty (30) days as of the parties thereto.date hereof that each Loan Party is validly existing and in good standing in its jurisdiction of incorporation, formation or organization, as the case may be;
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received receives a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & counsel of ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case Lender and in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided reasonably acceptable to the Administrative Agent;
(e) upon the reasonable request of any Lender made at least five (5) days prior to the date hereof, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement Borrower shall have been duly executed provided to such Lender, and delivered by each Loan Party that is to such Lender shall be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Datesatisfied with, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities so requested in connection with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered , in each case at least 10 two (2) days prior to the Closing Date and are not unduly burdensome on date hereof;
(f) at least five (5) days prior to the date hereof, any person unless Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation as set forth in 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall have delivered, to each Lender that so requests, a certification regarding beneficial ownership required by applicable Law.the Beneficial Ownership Regulation in relation to such Loan Party (a “Beneficial Ownership Certification”);
(mg) The Lenders the representations and warranties in the Credit Agreement, as amended by this Amendment, and each other Loan Document are true and correct in all material respects on and as of the date of this Amendment as though made as of the date of this Amendment except to the extent that (i) any of them speak to a different specific date, in which case they shall be true and correct in all material respects on and as of such earlier date; provided, that for purposes of this Amendment, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, or (ii) the facts on which any of them were based have received been changed by transactions contemplated or permitted by the Unaudited Financial Statements.Credit Agreement;
(nh) The the Administrative Agent receives payment of all reasonable fees and expenses of the Administrative Agent in connection with this Amendment;
(i) the Borrower shall have established paid to the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and Administrative Agent, for the BAML Engagement Letter benefit of the Credit Parties, all fees required to be paid on or before the Closing Date date hereof in connection with this Amendment;
(j) the Borrower and the Parent REIT shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americasentered into amendments to all Specified Debt, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower each in form and substance acceptable reasonably satisfactory to the Administrative Agent., as necessary to conform the applicable terms of such Specified Debt to the amendments set forth herein;
(rk) The the Administrative Agent and the holders (or an authorized representative thereof) of all Specified Debt shall have received evidence that a UCC-3 termination statement terminating entered into an amendment to the lien of CPF Capital & TradingIntercreditor Agreement, LLC shall have been filed in the appropriate filing office in form and substance acceptable reasonably satisfactory to the Administrative Agent., and each Lender party hereto hereby authorizes the Administrative Agent to enter into such amendment; and
(sl) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable after giving effect to the Administrative Agentthis Amendment, no Default or Event of Default exists.
Appears in 3 contracts
Sources: Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust)
Conditions Precedent. Each Lender The amendments set forth in Section 2 hereof and the agreements of the parties hereto set forth in Section 3 hereof shall make the Loans to be made by it each become effective on the Closing Date subject only to date on which the following conditions precedentare satisfied (such date, unless otherwise waived by the Lenders in their sole discretion:“Amendment No. 1 and Consent Effective Date”):
(a) This Agreement this Amendment No. 1 and Consent shall have been duly executed and delivered by the Borrower Obligors, the Administrative Agent and each Guarantor.the Majority Lenders;
(b) The Note each Lender that shall have been duly delivered (by facsimile or otherwise) an executed signature page to this Amendment No. 1 and delivered by Consent on or prior to 5:00 p.m. New York City time on August 14, 2009 shall have received from the Borrower.Borrower payment in immediately available funds of an amendment fee equal to 0.05% of the Commitments of such Lender (the “Amendment Fee”);
(c) Each Collateral Document Citigroup Global Markets Inc. (“CGMI”) shall have received from the Borrower payment in immediately available funds of an arrangement fee in an amount that shall have been duly executed agreed between the Borrower and delivered by each of CGMI (the parties thereto.“Arrangement Fee”);
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice from the Borrower payment in accordance with immediately available funds of all reasonable out-of-pocket expenses incurred by the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received(including the reasonable fees, on behalf charges and disbursements of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent) in connection with this Amendment No. 1 and Consent, the Collateral Agent Credit Agreement and each other Loan Document, as required by Section 7 hereof (collectively, the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.“Agent’s Expenses”); and
(he) The Administrative Agent shall have received (i) a copy of the certificate no Swing Line Loans or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V L/C Exposure shall be true and correct in all material respectsoutstanding.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (KKR & Co. L.P.), Credit Agreement (KKR & Co. L.P.)
Conditions Precedent. Each Lender This Amendment shall make the Loans to not be made by it on the Closing Date subject only to the following conditions precedent, effective unless otherwise waived by the Lenders in their sole discretionand until:
(a) This Agreement shall have been duly the Administrative Agent receives fully executed and delivered counterparts of this Amendment signed by the Borrower Loan Parties, the Administrative Agent and each Guarantor.the Required Lenders;
(b) The Note shall the Administrative Agent receives a certificate of a Responsible Officer of each Loan Party certifying (i) the incorporation, formation and organization documents, as the case may be, of such Loan Party (or that there have been duly no changes thereto since the date last certified to the Administrative Agent), (ii) resolutions or other action of such Loan Party authorizing this Amendment and the other documents executed and delivered by the Borrower.Loan Parties in connection herewith, (iii) the identity, authority, incumbency and signatures of each Responsible Officer executing this Amendment and any other document executed in connection herewith, and (iv) such other matters as the Administrative Agent may reasonably require;
(c) Each Collateral Document shall have been duly executed and delivered by each the Administrative Agent receives evidence dated within thirty (30) days as of the parties thereto.date hereof that each Loan Party is validly existing and in good standing in its jurisdiction of incorporation, formation or organization, as the case may be;
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received receives a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & counsel of ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case Lender and in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided reasonably acceptable to the Administrative Agent;
(e) upon the reasonable request of any Lender made at least five (5) days prior to the date hereof, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement Borrower shall have been duly executed provided to such Lender, and delivered by each Loan Party that is to such Lender shall be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Datesatisfied with, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities so requested in connection with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered , in each case at least 10 two (2) days prior to the Closing Date and are not unduly burdensome on date hereof;
(f) at least five (5) days prior to the date hereof, any person unless Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation as set forth in 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”) shall have delivered, to each Lender that so requests, a certification regarding beneficial ownership required by applicable Law.the Beneficial Ownership Regulation in relation to such Loan Party (a “Beneficial Ownership Certification”);
(mg) The Lenders the representations and warranties in the Credit Agreement, as amended by this Amendment, and each other Loan Document are true and correct in all material respects on and as of the date of this Amendment as though made as of the date of this Amendment except to the extent that (i) any of them speak to a different specific date, in which case they shall be true and correct in all material respects on and as of such earlier date; provided, that for purposes of this Amendment, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, or (ii) the facts on which any of them were based have received been changed by transactions contemplated or permitted by the Unaudited Financial Statements.Credit Agreement;
(nh) The the Administrative Agent receives payment of all reasonable fees and expenses of the Administrative Agent in connection with this Amendment;
(i) the Borrower shall have established paid to the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and Administrative Agent, for the BAML Engagement Letter benefit of the Credit Parties, all fees, if any, required to be paid on or before the Closing Date date hereof in connection with this Amendment;
(j) the Borrower and the Parent REIT shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americasentered into amendments to all Specified Debt, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower each in form and substance acceptable reasonably satisfactory to the Administrative Agent., as necessary to conform the applicable terms of such Specified Debt to the amendments set forth herein; and
(rk) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien after giving effect to this Amendment, no Default or Event of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative AgentDefault exists.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust)
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date, when each of the following conditions precedentis satisfied (the “Second Amendment Effective Date”):
4.1 The Administrative Agent shall have executed and received from the Lenders, unless otherwise waived the Borrower, and each other Credit Party counterparts (in such number as may be requested by the Lenders in their sole discretion:
(aAdministrative Agent) This Agreement shall have been duly executed and delivered by the Borrower and of this Amendment signed on behalf of each Guarantorsuch Person.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.2 The Administrative Agent shall have received a Committed certificate of a Responsible Officer of each Credit Party setting forth (a) resolutions of its board of directors (or comparable governing body) with respect to the authorization of such Credit Party to execute and deliver this Amendment and to enter into the transactions contemplated in the Loan Notice Documents, (b) the officers of such Credit Party (i) who are authorized to sign the Loan Documents to which such Credit Party is a party and (ii) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in accordance connection with the requirements hereof at least one day prior Credit Agreement and the transactions contemplated thereby, (c) specimen signatures of such authorized officers, |US-DOCS\158871609.13|| and (d) the bylaws, limited liability company agreements, limited partnership agreements, certificates of formation and certificates of limited partnership, as applicable, of such Credit Party, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to the requested date for funding such Loancontrary.
(g) 4.3 The Administrative Agent shall have receivedreceived certificates of the appropriate State agencies with respect to the existence, on behalf qualification and good standing of itself, each Credit Party from its state of incorporation or formation and with respect to foreign qualification in any other jurisdiction in which such Credit Party owns Oil and Gas Properties.
4.4 The Administrative Agent shall have received duly executed Notes payable to each Lender requesting a Note in a principal amount equal to its Maximum Credit Amount dated as of the Collateral Second Amendment Effective Date.
4.5 The Administrative Agent and the Lenders, shall have received an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇LLP, special counsel to the Credit Parties, in form and substance reasonably acceptable to the Administrative Agent and its counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank.
4.6 The Administrative Agent shall have received appropriate tax, judgment and UCC search certificates and county-level real property record search results reflecting no prior Liens encumbering the Properties of Holdings, the Borrower and its Restricted Subsidiaries for each jurisdiction requested by the Administrative Agent other than those Liens permitted by Section 9.03 of the Credit Agreement.
4.7 The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that (a) the representations and warranties set forth in Article VII of the Credit Agreement are true and correct in all material respects on the Second Amendment Effective Date except to the extent any such representations and warranties (i) are expressly limited to an earlier date, in which case, on and as of the Second Amendment Effective Date, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date or (ii) are already qualified by materiality, Material Adverse Effect or a similar qualification, in which case, such representations and warranties shall be true and correct in all respects; (b) after giving effect to this Amendment on the Second Amendment Effective Date, (i) since December 31, 2023, there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect and (ii) no Default or Event of Default shall have occurred and be continuing; (c) after giving effect to this Amendment on the Second Amendment Effective Date, the Borrower is in pro forma compliance with Sections 9.01(a) and 9.01(b) of the Credit Agreement; and (d) after giving effect to this Amendment on the Second Amendment Effective Date, the Borrower and its Restricted Subsidiaries have no indebtedness outstanding other than (i) the Loans and other extensions of credit under the Credit Agreement and (ii) any other Debt permitted by Section 9.02 of the Credit Agreement.
4.8 The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower substantially in the form of Exhibit L to the Credit Agreement.
4.9 The Administrative Agent shall have received a Borrowing Request in accordance with Section 2.03 of the Credit Agreement, if applicable.
4.10 The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder (including the reasonable and documented fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (BKV Corp), Credit Agreement (BKV Corp)
Conditions Precedent. Each Lender This Ninth Amendment shall make not become effective until the Loans to be made by it date on the Closing Date subject only to which each of the following conditions precedentis satisfied (or waived in accordance with Section 12.02 of the Credit Agreement) (the “Ninth Amendment Effective Date”):
4.1 The Administrative Agent shall have received from the Majority Lenders, unless otherwise waived the Borrower and the Guarantors, counterparts (in such number as may be requested by the Lenders in their sole discretion:Administrative Agent) of this Ninth Amendment signed on behalf of such Person.
(a) This Agreement 4.2 The Administrative Agent shall have been duly executed and delivered by received from the Borrower and each GuarantorGuarantor (including the Parent Guarantors) counterparts (in such number as may be requested by the Administrative Agent), signed on behalf of such Person, of amendments, joinders and/or assumption agreements with respect to each of this Agreement, the Guaranty Agreement, the Pledge Agreement and the Security Agreement, in each case with respect to the joinder of the Parent Guarantors, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(b) 4.3 The Note Administrative Agent shall be reasonably satisfied that the Security Instruments create first priority, perfected Liens on all of the Property of the Parent Guarantors, and the Administrative Agent shall have been duly executed received certificates, if any, together with undated, blank stock powers for such certificates, representing all of the issued and delivered by outstanding certificated Equity Interests in each subsidiary pledged pursuant to the BorrowerPledge Agreement.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.4 The Administrative Agent shall have received a Committed Loan Notice in accordance certificate (which may be the same certificate delivered pursuant to Section 4.8 and 4.10) of each Parent Guarantor setting forth (i) resolutions of the board of directors or other managing body with the requirements hereof at least one day prior respect to the requested date authorization of each Parent Guarantor to execute and deliver the Loan Documents to which it is a party and to enter into the transactions contemplated in those documents, (ii) the individuals (A) who are authorized to sign the Loan Documents to which such Parent Guarantor is a party and (B) who will, until replaced by another individual duly authorized for funding that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the other Loan Documents to which it is a party, (iii) specimen signatures of such Loanauthorized individuals, and (iv) the articles or certificate of incorporation or formation and bylaws, operating agreement or partnership agreement, as applicable, of each Parent Guarantor, in each case, certified as being true and complete.
(g) 4.5 The Administrative Agent shall have receivedreceived certificates of the appropriate State agencies with respect to the existence, on behalf qualification and good standing of itselfeach Parent Guarantor, the Collateral if any.
4.6 The Administrative Agent and the Lenders, shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ , LLP, special counsel for to the Loan Parties dated the Closing Date Borrower, in form and addressed substance reasonably satisfactory to the Administrative Agent, as to such matters as the Collateral Administrative Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindmay reasonably request.
(h) 4.7 The Administrative Agent shall have received (i) a an executed copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as an amendment to the good standing Second Lien Intercreditor Agreement, by and among the Administrative Agent, the Second Lien Administrative Agent, the Borrower and the Guarantors (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of including the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party andParent Guarantors), in the case of the Borrower, the borrowings hereunder, form and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided substance reasonably satisfactory to the Administrative Agent, together with (in the case of clause (y)) copies . Each of the financing statements (or similar documents) disclosed by such search Lenders party hereto hereby instructs and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that authorizes the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requiremententer into such amendment on its behalf.
(j) 4.8 The Administrative Agent shall have received a certificate in (which may be the form same certificate delivered pursuant to Section 4.4 and 4.10) of Exhibit I, dated the Closing Date and signed by the Chief Financial a Responsible Officer of Borrowerthe Borrower certifying (a) that attached thereto is a true, certifying that Borrower correct and its Subsidiaries, on a consolidated basis, are Solvent as complete copy of the Closing Date.
(k) On Fourth Amendment to the Closing DateSecond Lien Credit Agreement, the representations and warranties made by the Loan Parties in Article V which shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable reasonably satisfactory to the Administrative Agent.
, and shall in any event amend the Second Lien Credit Agreement in the same manner as the Credit Agreement is to be amended by this Ninth Amendment (rthe “Second Lien Amendment”) and (b) as to the aggregate amount of all consent, amendment and other fees payable to the holders of the Second Lien Loans in connection with the Second Lien Amendment and/or the Reorganization Transactions (the “Second Lien Amendment Fee”). The Administrative Agent “Fourth Amendment Effective Date” under and as defined in the Second Lien Credit Agreement shall have received evidence that a UCC-3 termination statement terminating occurred (or shall occur substantially concurrently with the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative AgentNinth Amendment Effective Date).
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Legacy Reserves Inc.), Credit Agreement (Legacy Reserves Lp)
Conditions Precedent. Each Lender The effectiveness of this Amendment shall make the Loans to be made by it on the Closing Date subject only to the satisfaction of the following conditions precedentconditions, unless otherwise waived by in each case, in form and substance reasonably satisfactory to the Lenders in their sole discretion:Administrative Agent (such date on which the Amendment becomes effective, the “Amendment No. 4 Effective Date”):
(a) This Agreement the Administrative Agents shall have been received duly executed counterparts (in such number as may be requested by the Administrative Agent) of (i) this Amendment from the Company, the Borrower, the Guarantors, the Specified Additional Guarantors and delivered by the Lenders and (ii) the Amendment No. 4 Fee Letter from the Company and the Borrower and each Guarantor.the Lenders;
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed certificate of a Responsible Officer of each Credit Party setting forth (i) resolutions of its board of directors or other appropriate governing body with respect to the authorization of such Credit Party, as applicable, to execute and deliver this Amendment and the other Loan Notice Documents contemplated hereby to which it is a party and enter into the transactions contemplated by this Amendment, the Credit Agreement and the other Loan Documents, (ii) the officers of such Credit Party, as applicable, (A) who are authorized to sign this Amendment and the other Loan Documents contemplated hereby to which such Credit Party is a party and (B) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in accordance connection with this Amendment and the requirements hereof Credit Agreement and the transactions contemplated hereby and thereby, (iii) specimen signatures of such authorized officers and (iv) the articles or certificate of incorporation and by-laws or other applicable organizational documents of such Credit Party, as applicable, certified by such Responsible Officer as being true and complete; provided, that, for the purposes of this Section 3.1(b), “Credit Party” shall include Parent;
(c) the Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence or good standing, as applicable, of the Borrower and each Guarantor, in each case, in their respective jurisdiction of organization and foreign qualification in any other jurisdiction in which such Person owns Oil and Gas Properties;
(d) the Administrative Agent shall have received a Solvency Certificate, dated as of the Amendment No. 4 Effective Date, duly executed by a Financial Officer;
(e) the Administrative Agent shall have received a certificate of a Financial Officer in form and substance reasonably satisfactory to the Administrative Agent certifying that attached to such certificate is a pro forma unaudited consolidated balance sheet of the Company and its Consolidated Subsidiaries as of December 31, 2024 giving effect to the borrowing of the Amendment No. 4 Term Loans and any other borrowings under the Credit Agreement since such date, which will reflect that the Borrower and the other Credit Parties have no Indebtedness on the Amendment No. 4 Effective Date other than the Secured Obligations or other Indebtedness permitted by Section 9.02 of the Credit Agreement;
(f) the Administrative Agent shall have received a Borrowing Request relating to the Borrowing of the Amendment No. 4 Term Loans at least one day prior to three (3) Business Days before the requested date for funding Amendment No. 4 Effective Date (or such Loan.shorter time as the Administrative Agent may agree in its sole discretion);
(g) The the Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date Credit Parties, in form and addressed of substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.;
(h) The the Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority February 2025 Reserve Report and (ii) a certificate of Reserve Report Certificate with respect to the Secretary or Assistant Secretary of each Loan Party dated the Closing Date Oil and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted Gas Properties covered by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party andFebruary 2025 Reserve Report, in the case form and of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as substance reasonably acceptable to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Administrative Agent;
(i) The the Administrative Agent shall have received title information as the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searchesAdministrative Agent may reasonably require, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided reasonably satisfactory to the Administrative Agent, together with setting forth the status of title to (in the case of clause i) at least ninety percent (y)90%) copies of the financing statements (or similar documents) disclosed by such search and (ii) PV-10 of the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity PDP Reserves of the Borrower and each the Guarantors evaluated in the February 2025 Reserve Report, (ii) at least ninety percent (90%) of the Closing Pledged Companies accompanied by undated stock powers executed PV-10 of the Proved Reserves of the Borrower and the Guarantors evaluated in blank the February 2025 Reserve Report and (yiii) documents all of the PV-10 of the Proved Reserves of the Oil and instruments to be recorded or filed that Gas Properties described in the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.APOD;
(j) The the Administrative Agent shall have received a certificate production reports and accounting lease operating statements in form and substance reasonably acceptable to the Administrative Agent, setting forth, for each calendar month ended after the Amendment No. 3 Effective Date up to and including the month ended March 31, 2025, on an accounting date basis, the volume of production and sales attributable to production for which cash activity has been recorded (and the prices at which such sales or transactions were made and the revenues derived from such sales or transactions) for each such period from the Oil and Gas Properties evaluated in the form of Exhibit IFebruary 2025 Reserve Report, dated in each case setting forth the Closing Date related ad valorem, severance and signed by the Chief Financial Officer of Borrower, certifying that Borrower production taxes and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.lease operating expenses attributable thereto and incurred for each such period;
(k) On the Closing DateAdministrative Agent shall have received reasonably detailed forecasts prepared by management of the Company (including projected consolidated balance sheets, income statements, EBITDAX, cash flow statements, the representations and warranties made projected production of Hydrocarbons by the Loan Parties Company and its Subsidiaries and the assumptions used in Article V shall calculating such projections, the Company’s annual operating and capital expenditure budgets and financial forecasts, including cash flow projections covering proposed fundings, repayments, additional advances, investments and other cash receipts and disbursements of the Company and its Subsidiaries) on a quarterly basis for the 2025 fiscal year, prepared in good faith on the basis of assumptions believed to be true reasonable at the time of preparation thereof and correct in all material respects.form and substance reasonably acceptable to the Administrative Agent;
(l) The the Administrative Agent shall have received copies of all gas gathering and transportation agreements and Material Contracts to which the Borrower or any other Credit Party has entered into after the Amendment No. 3 Effective Date and on or prior to the Amendment No. 4 Effective Date;
(m) the Administrative Agent, the Arranger and the Lenders shall have received all fees and amounts due and payable on or prior to the Amendment No. 4 Effective Date, including, (i) all fees required to be paid pursuant to the Amendment No. 4 Fee Letter and Fee Letter and (ii) to the extent invoiced by 11:00 am CDT on the Amendment No. 4 Effective Date (or such shorter time as the Borrower may agree in its sole discretion), reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower pursuant to Section 12.03 of the Credit Agreement;
(n) each Amendment No. 4 Lender that has requested in writing the same at least three (3) Business Days prior to the Amendment No. 4 Effective Date shall have received, at least one (1) Business Day prior to the Amendment No. 4 Effective Date, (i) all documentation and other information required by regulatory authorities in connection with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Patriot Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior , and (ii) to the Closing Date extent applicable, in connection with the Beneficial Ownership Regulation, a Beneficial Ownership Certification in a form reasonably satisfactory to the Administrative Agent and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.each requesting Amendment No. 4 Lender;
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower a certificate of a Responsible Officer in form and substance acceptable reasonably satisfactory to the Administrative Agent certifying that (i) since December 31, 2023, there has been no event, occurrence, development or change that has had or could reasonably be expected to have a Material Adverse Effect and (ii) the conditions set forth in clauses (q), (s) and (t) of this Section 3.1 have been satisfied;
(p) the Administrative Agent shall have received a certificate of a Financial Officer in form and substance reasonably satisfactory to it certifying that attached to such certificate is evidence, in form and substance satisfactory to the Administrative Agent., that, as of the Amendment No. 4 Effective Date, the Borrower’s Net Working Capital (without giving effect to the proceeds from the borrowing of Amendment No. 4 Term Loans hereunder) is greater than or equal to $7,500,000;
(q) immediately after giving effect to the borrowing of the Amendment No. 4 Term Loans and the application of proceeds therefrom, the Borrower and its Subsidiaries shall be in compliance with the financial ratios set forth in Section 9.01(a), Section 9.01(b) and Section 9.01(c) of the Credit Agreement on a Pro Forma Basis;
(r) The the Administrative Agent shall have received evidence reasonably satisfactory to it that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office Company has entered into Swap Agreements in form and substance acceptable reasonably satisfactory to the Administrative Agent.Majority Lenders (i) with one or more Approved Counterparties, (ii) that mitigate commodity index price risk and (iii) the notional volumes for which, when aggregated with all other Swap Agreements then in effect, are no less than seventy-five percent (75%) of the reasonably anticipated aggregate projected production of crude oil for each month during the thirty six (36) month period following the Amendment No. 4 Effective Date from the Company’s and its Subsidiaries’ (x) Proved Developed Producing Reserves plus (y) Proved Developed Non-Producing Reserves and (z) the ▇▇▇▇▇ described under the heading “Work in Progress ▇▇▇▇▇” identified on Exhibit E attached hereto, in the case of each (x), (y), and (z) based on the January 2025 Reserve Report;
(s) The immediately prior to and after giving effect to this Amendment, no Event of Default or Default shall have occurred and be continuing;
(t) the representations and warranties contained in Article 4 hereof shall be true and correct in all material respects (or, with respect to any representation and warranty qualified by materiality or a material adverse change or material adverse effect standard, in all respects) on and as of the date hereof as though made on and as of the date hereof (although any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, with respect to any representation and warranty qualified by materiality or a material adverse change or material adverse effect standard, in all respects) as of the specified earlier date);
(u) the Administrative Agent shall have received a duly executed funds flow memorandum in form counterparts of the Assumption Agreement, dated as of the Amendment No. 4 Effective Date, from each New Guarantor; and
(v) the Administrative Agent and substance acceptable the Lenders shall have received copies of all other documents, certificates and instruments reasonably requested thereby with respect to the transactions contemplated by this Amendment. For purposes of determining whether the conditions set forth in this Section 3.1 have been satisfied, by releasing its signature page hereto, the Administrative AgentAgent and each Lender shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, the Administrative Agent or such Lender, as the case may be.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Phoenix Energy One, LLC), Limited Waiver and Amendment No. 4 to Amended and Restated Senior Secured Credit Agreement (Phoenix Energy One, LLC)
Conditions Precedent. Each Lender shall The obligation of the Lenders to make the Loans to be made by it any Loan, on any Credit Date, including the Closing Date Date, is subject only to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(ai) This Agreement each Credit Document shall be in full force and effect, shall include terms and provisions reasonably satisfactory to the Administrative Agent (provided that the terms and provisions set forth in the Credit Documents as of the Closing Date shall be deemed satisfactory to the Administrative Agent) and no provision thereof shall have been duly executed and delivered amended, restated, supplemented, modified or waived in any respect determined by the Borrower and Administrative Agent to be material, in each Guarantorcase, without the consent of the Administrative Agent.
(bii) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan fully executed Funding Notice in accordance together with the requirements hereof at least one day a Borrowing Base Certificate prior to 11:00 a.m. (Chicago, Illinois time) on the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Credit Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made evidencing sufficient Commitment Availability with respect to the requested Loan Parties together with an updated schedule of Receivables including the Receivables to be pledged in connection with the states or other jurisdictions of formation of Loan, such Person schedule to (A) be in an electronic file format reasonably satisfactory to the Administrative Agent and (B) set forth the information required to be provided under the Backup Servicing Agreement (including, without limitation, and with respect to such other locations and names provided to each Contract, (1) the Administrative Agentaccount number; (2) Obligor name, together with (in 3) the case of clause (y)) copies outstanding principal balance of the financing statements (or similar documents) disclosed Receivable evidenced by such search Contract), (4) the Remaining Funded Amount of such Receivable, and (ii5) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered any other information reasonably requested by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary with respect to satisfy the Collateral and Guarantee Requirement.such Credit Date;
(jiii) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing such Credit Date, the representations and warranties made by the Loan applicable Credit Parties contained herein and in Article V the other Credit Documents to which it is a party shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects.) on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of such earlier date;
(liv) The Lenders as of such Credit Date, after giving effect to such Loan, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) as of such Credit Date, the Collateral Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.a fully executed Assignment;
(mvi) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americasapproved all material changes made to the Credit Policies and the Servicing Policy in accordance with the terms set forth herein;
(vii) in accordance with the terms of the Backup Servicing Agreement, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable shall have delivered, or caused to be delivered, to the Administrative Agent.
Backup Servicer, imaged copies of the Verified Documents and the related Lender Report, and (r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(sextent required pursuant to the Backup Servicing Agreement) The the Administrative Agent shall have received a duly executed funds flow memorandum in form and substance Verified Receivables Report from the Backup Servicer, which Verified Receivables Report is acceptable to the Administrative Agent in its sole discretion;
(viii) no Material Adverse Effect shall have occurred;
(ix) no Tier 2 Collateral Performance Trigger shall have occurred;
(x) no Regulatory Trigger Event shall have occurred;
(xi) immediately prior to and after making the Credit Extensions requested on such Credit Date, no Borrowing Base Deficiency shall exist;
(xii) immediately after making the Credit Extensions requested on such Credit Date, Commitment Availability shall not be less than the amount required pursuant to Section 5.11(b)(ii); and
(xiii) none of the Receivables to be sold to the Borrower on such Credit Date and reflected on the Borrowing Base Certificate delivered pursuant to clause (ii) above were originated in any state or jurisdiction with respect to which any Governmental Authority has instituted any formal inquiry or investigation (which for the avoidance of doubt excludes any routine inquiry or investigation), legal action or proceeding against any Credit Party, any Originator, any Bank Partner Originator or any sub-servicer relating to such Person’s authority to originate, hold, own, service, pledge or enforce any Receivable with respect to the residents of such state, which formal inquiry, investigation, legal action or proceeding has not been resolved prior to such Credit Date. Any Agent shall be entitled, but not obligated, to request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent, such request is warranted under the circumstances.
Appears in 2 contracts
Sources: Revolving Credit Agreement (OppFi Inc.), Revolving Credit Agreement (OppFi Inc.)
Conditions Precedent. Each Lender This Amendment (other than this Section 4) and the amendments attached as Exhibit A hereto and Schedule 2 hereto shall make the Loans to be made by it become effective on the Closing Date subject only to date (the “Amendment No. 4 Effective Date”) when each of the following conditions precedent, unless otherwise waived by shall have been fulfilled to the Lenders in their sole discretionsatisfaction of the Administrative Agent:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received counterparts of this Amendment executed by the Credit Parties, the Administrative Agent, each Revolving Credit Lender (being all of the Lenders directly and adversely affected by the Revolving Credit Facility Amendments), each Amendment No. 4 New Revolving Credit Lender party hereto (in its capacity as an Amendment No. 4 New Revolving Credit Lender and as a Committed Loan Notice Letter of Credit Issuer) and each of Bank of America, N.A. and KKR Corporate Lending LLC, in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.their capacities as Letter of Credit Issuers;
(gb) The the Administrative Agent (or its counsel) shall have receivedreceived the executed legal opinion, on behalf of itselfin customary form, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York, California, Texas and Delaware counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the LendersCredit Parties, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.reasonably satisfactory to the Administrative Agent;
(hc) The the Administrative Agent shall have received (i) a copy of the certificate or articles resolutions of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or other managers of Holdings, the Borrower and the other Guarantors (or equivalent governing bodya duly authorized committee thereof) of each Loan Party authorizing (a) the execution, delivery delivery, and performance of the Loan Credit Documents (and any agreements relating thereto) to which such Person it is a party and, and (b) in the case of the Borrower, the borrowings extensions of credit contemplated hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party theretoor other comparable organizational documents, together with (x) certificates representing the Pledged Equity as applicable, of Holdings, the Borrower and each the other Guarantors, and (iii) signature and incumbency certificates (or other comparable documents evidencing the same) of the Closing Pledged Companies accompanied by undated stock powers executed in blank Authorized Officers of Holdings, the Borrower and the other Guarantors executing the Credit Documents to which it is a party;
(d) on the Amendment No. 4 Effective Date, (a) before and after giving effect to the establishment of the Amendment No. 4 New Revolving Credit Commitments (and the incurrence of the Amendment No. 4 New Revolving Credit Loans (if any) on the Amendment No. 4 Effective Date), no Default or Event of Default shall have occurred and be continuing and (yb) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the all representations and warranties made by any Credit Party in Section 5 hereof, in the Loan Parties Existing Credit and in Article V the other Credit Documents shall be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects.) with the same effect as though such representations and warranties had been made on and as of the Amendment No. 4 Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects) as of such earlier date);
(le) The Lenders on the Amendment No. 4 Effective Date, the Administrative Agent shall have received all a certificate from the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, the Vice President-Finance, a Director, a Manager, or any other senior financial officer of the Borrower to the effect that after giving effect to the consummation of the Amendment No. 4 Effective Date Transactions, the Borrower on a consolidated basis with the Restricted Subsidiaries is Solvent;
(f) the Administrative Agent shall have received a certificate from the Borrower certifying that the Amendment No. 4 New Revolving Credit Commitments do not exceed the Maximum Incremental Facilities Amount;
(g) the Administrative Agent and the Amendment No. 4 Joint Lead Arrangers shall have received at least three Business Days prior to the Amendment No. 4 Effective Date such documentation and other information as is reasonably requested in writing at least ten calendar days prior to the Closing Date by the Administrative Agent or any Amendment No. 4 Joint Lead Arranger about the Credit Parties to the extent required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act; provided that Patriot Act and, if the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior Borrower qualifies as a “legal entity customer” under the Beneficial Onwership Regulation, a Beneficial Ownership Certification in relation to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.Borrower;
(mh) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.each Amendment No. 4
Appears in 2 contracts
Sources: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)
Conditions Precedent. Each Lender As provided in Section 2 above, the amendments to the Credit Agreement contemplated hereby shall make become effective as of March 31, 2015 (the Loans to be made by it on “Amendment Effective Date”), upon the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by provided that such conditions precedent are satisfied on or prior to the Lenders in their sole discretionAmendment Effective Date:
4.01 The Administrative Agent (aor its counsel) This Agreement shall have been received the signature pages to this Amendment duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of (i) the parties theretoBorrower, (ii) each Obligor, (iii) the Consenting Lenders and (iv) each New Lender.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.02 The Administrative Agent shall have received a Committed Loan Notice favorable written opinion (addressed to each Lender Party and dated the Amendment Effective Date) of each of (i) ▇▇▇▇▇▇▇▇ Chance US LLP with respect to New York law, (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PLC with respect to California law and in accordance relation to ILFC and CA Subsidiary HoldCo, (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ with the requirements hereof at least one day prior respect to the requested date for funding such Loan.
Irish law and in relation to Irish Subsidiary HoldCo, AIL and AICL, (giv) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Arsht & ▇▇▇▇▇▇▇▇ LLPLLP with respect to Delaware law and in relation to the Borrower, special counsel for the Loan Parties dated the Closing Date Financing Trust, Parent HoldCo and US HoldCo and (v) NautahDutilh with respect to Dutch law and in relation to AerCap and AAS, each addressed to each Lender Party and in form and substance reasonably satisfactory to the Administrative AgentAgent and dated the Amendment Effective Date.
4.03 The representations and warranties of the Obligors contained in Article 3 of the Credit Agreement (as amended hereby) and contained in each other Loan Document shall be true and correct on and as of the Amendment Effective Date, except to the Collateral extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and an Officer’s Certificate of AerCap shall so certify on and as of the Amendment Effective Date to the Administrative Agent and the Lenders.
4.04 Each Non-Consenting Lender shall have transferred its Loans to a Consenting Lender or a New Lender.
4.05 The Borrower shall have paid all amounts owed under the fee letters related to this Amendment to the Consenting Lenders and the New Lenders.
4.06 The Borrower shall have paid all other fees and other amounts due and payable by it under the Credit Agreement, and all other out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder, under any Loan Document or as separately agreed between any Borrower Party and any arranger in each case in form and substance customary for senior secured credit facilities in transactions respect of this kindAmendment.
(h) 4.07 The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, an LTV Certificate with Appraisals dated as of a recent date by the Secretary of State of the state of its organizationno more than thirty (30) days prior to March 30, 2015, and a certificate as on the Amendment Effective Date the Borrower shall be in compliance with Section 5.16(a).
4.08 Prior to the good standing (where relevant) of each Loan Party and Project Company as of a recent dateAmendment Effective Date, from such Secretary of State the Lenders shall have received all “Know-Your-Customer”, money laundering, Patriot Act or similar Governmental Authority documentation and (ii) a certificate of information reasonably required by such Lenders by notice to the Secretary Borrower given on or Assistant Secretary of each Loan Party dated before March 23, 2015.
4.09 On the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Amendment Effective Date, (B) that attached thereto is a true no Default or Event of Default shall have occurred and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovebe continuing.
(i) 4.10 The Administrative Agent shall have received such documents and certificates as it or its counsel may reasonably request relating to the results organization, existence and, if applicable, good standing of (x) searches each Obligor, the authorization of the Uniform Commercial Code filings (or equivalent filings) transactions contemplated by the Loan Documents and (y) judgment and tax lien searches, made with respect any other legal matters relating to the Obligors, the Loan Parties Documents, the Collateral or the transactions contemplated hereby or thereby, all in the states or other jurisdictions of formation of such Person form and with respect to such other locations and names provided substance reasonably satisfactory to the Administrative AgentAgent and its counsel. For purposes of determining compliance with the conditions specified in this Section 4, together with (in the case of clause (y)) copies of the financing statements (each Lender shall be deemed to have consented to, approved or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is accepted or to be a party thereto, together satisfied with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments document or other matter required thereunder to be recorded consented to or filed that approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent may deem reasonably necessary responsible for the transactions contemplated by this Amendment shall have received notice from such Lender prior to satisfy the Collateral and Guarantee Requirement.
(j) Amendment Effective Date specifying its objection thereto. The Administrative Agent shall have received a certificate in promptly notify the form parties hereto of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Amendment Effective Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (AerCap Holdings N.V.), Term Loan Credit Agreement (AerCap Global Aviation Trust)
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by become effective on the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by date the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by Administrative Agent has confirmed the satisfaction or waiver of each of the parties thereto.
conditions contained in this Section 2 (d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing “Effective Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.”):
(i) The Administrative Agent shall have received the results counterparts of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security this Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each (1) the Loan Party that is to be a party theretoParties, together with (x2) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank Administrative Agent, and (yiii) documents and instruments each Incremental Revolving Loan Lender;
(ii) The Borrower shall have paid to be recorded or filed that the Administrative Agent may deem reasonably necessary all expenses payable pursuant to satisfy Section 9.03 of the Collateral and Guarantee Requirement.Credit Agreement which have accrued to the Effective Date to the extent invoices therefor have been provided at least one Business Day prior to the Effective Date;
(jiii) The Administrative Agent shall have received a certificate the executed legal opinions of ▇▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably satisfactory to Administrative Agent;
(iv) The Administrative Agent shall have received (1) certified copies of the form resolutions of Exhibit Ithe board of directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and all documents evidencing other necessary organizational action and governmental approvals, dated the Closing Date if any, with respect to this Agreement and signed (2) all other documents reasonably requested by the Chief Financial Officer Administrative Agent relating to the organization, existence and good standing of Borrower, certifying that the Borrower and its Subsidiaries, on a consolidated basis, are Solvent as the authorization of the Closing Date.transactions contemplated hereby;
(kv) On the Closing Date, the The representations and warranties made by of the Borrower set forth in the Loan Parties in Article V Documents (including, without limitation, this Agreement) shall be true and correct in all material respects on and as of the Effective Date except that (1) the representations and warranties contained in Section 3.04(a) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) (subject, in the case of unaudited financial statements furnished pursuant to clause (b), to year-end audit adjustments and the absence of footnotes), respectively, of Section 5.01 of the Credit Agreement, (2) to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date and (3) to the extent that such representations and warranties are already qualified or modified by materiality or words of similar effect in the text thereof, they shall be true and correct in all respects.;
(lvi) As of the Effective Date, no Default or Event of Default shall have occurred and be continuing or will result from the execution of this Agreement and the transactions contemplated hereby as of the Effective Date;
(vii) The Lenders Administrative Agent shall have received (1) a certificate, dated the Effective Date and signed on behalf of the Borrower by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (v) and (vi) of this Section 2(a) as of the Effective Date, and (2) a solvency certificate, dated the Effective Date and signed on behalf of the Borrower by the most senior financial officer of the Borrower, certifying that, as of the Effective Date, the Borrower and the Restricted Subsidiaries, taken as a whole, are, and after giving effect to the incurrence of any Indebtedness and obligations being incurred in connection herewith will be, Solvent;
(viii) Each Incremental Revolving Loan Lender shall have received, to the extent reasonably requested at least five Business Days prior to the Effective Date, all documentation and other information required by bank regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Patriot Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.and
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(qix) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against written notice from the Borrower of its request to increase the existing Revolving Commitments in form and substance acceptable to accordance with Section 2.18(a) of the Credit Agreement (it being agreed by the Administrative AgentAgent and the Incremental Revolving Loan Lenders that this Agreement shall serve as such written notice and the ten Business Day delivery requirement set forth in Section 2.18(a) of the Credit Agreement has been waived).
(rb) The Administrative Agent shall have received evidence that obligation of each Incremental Revolving Loan Lender to make a UCC-3 termination statement terminating Loan on the lien occasion of CPF Capital & Trading, LLC shall have been filed in any Borrowing after the appropriate filing office in form and substance acceptable Effective Date is subject to the Administrative Agentsatisfaction of the conditions set forth in Section 4.02 of the Credit Agreement.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Joinder Agreement (Uber Technologies, Inc), Joinder Agreement (Uber Technologies, Inc)
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date The effectiveness of this Third Amendment is subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionfollowing:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 7.1 The Administrative Agent shall have received a Committed Loan Notice counterparts (in accordance with the requirements hereof at least one day prior to the such number as may be requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to by the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions ) of this kindThird Amendment from the Borrower, each Guarantor and each Lender (including each New Lender).
(h) 7.2 The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of an Administrative Questionnaire from each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveNew Lender.
(i) 7.3 The Administrative Agent shall have received from the results relevant Loan Parties duly executed and notarized mortgages and/or mortgage supplements or amendments in form and substance reasonably satisfactory to the Administrative Agent so that, after giving effect to the recording of such mortgages, mortgage supplements and/or amendments, the Administrative Agent shall be reasonably satisfied that it has first priority, perfected Liens (xsubject only to Excepted Liens identified in clauses (a) searches of the Uniform Commercial Code filings to (or equivalent filingsd) and (yf) judgment and tax lien searchesof the definition thereof, made with respect but subject to the Loan Parties in provisos at the states or other jurisdictions of formation end of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)definition) copies on at least 85% of the financing statements total value (or similar documents) disclosed as determined by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably based on the present value of the Proved Reserves attributable thereto using a 9% discount rate) of the Oil and Gas Properties evaluated in the Reserve Report most recently delivered pursuant to Section 8.12(a), including any amendments necessary to satisfy reflect the Collateral and Guarantee RequirementAggregate Maximum Credit Amount (as amended by this Third Amendment).
(j) 7.4 The Administrative Agent shall have received from the Borrower title information setting forth the status of title to at least 85% of the total value (as determined by the Administrative Agent based on the present value of the Proved Reserves attributable thereto using a certificate 9% discount rate) of the Oil and Gas Properties evaluated in the form of Exhibit I, dated the Closing Date Reserve Report most recently delivered pursuant to Section 8.12(a).
7.5 No Default or Borrowing Base Deficiency shall have occurred and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent be continuing as of the Closing Datedate hereof after giving effect to the terms of this Third Amendment.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) 7.6 The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. all fees and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form other amounts due and substance acceptable payable to the Administrative AgentAgent or any Lenders in connection with this Third Amendment.
(r) 7.7 The Administrative Agent shall have received evidence that duly executed Notes payable to each Lender requesting a UCC-3 termination statement terminating Note in a principal amount equal to its Maximum Credit Amount (as amended by this Third Amendment) dated as of the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agentdate hereof.
(s) 7.8 The Administrative Agent shall have received a duly executed funds flow memorandum in form such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent is hereby authorized and substance acceptable directed to declare this Third Amendment to be effective when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 7 or the waiver of such conditions as permitted hereby. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (WildHorse Resource Development Corp)
Conditions Precedent. Each Lender This Eighth Amendment shall make not become effective until the Loans to be made by it date on the Closing Date subject only to which each of the following conditions precedent, unless otherwise is satisfied (or waived by in accordance with Section 12.02 of the Lenders in their sole discretion:Credit Agreement) (the “Eighth Amendment Effective Date”):
4.1 The Administrative Agent shall have received (a) This from the Required Lenders, the Borrower and the Guarantors, counterparts (in such number as may be requested by the Administrative Agent) of this Eighth Amendment signed on behalf of such Person and (b) from the Borrower and the Guarantors, counterparts (in such number as may be requested by the Administrative Agent) of amendments to each of the Pledge Agreement and Security Agreement signed on behalf of such Person.
4.2 The Administrative Agent shall have received from the Second Lien Administrative Agent, the Borrower and the Guarantors, counterparts (in such number as may be requested by the Administrative Agent) of the Second Lien Intercreditor Agreement signed on behalf of such Person.
4.3 The “Effective Date” under and as defined in the Second Lien Credit Agreement shall have been duly executed and delivered by occurred (or shall occur substantially concurrently with the Borrower and each GuarantorEighth Amendment Effective Date).
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.4 The Administrative Agent shall have received a Committed certificate of a Responsible Officer of the Borrower certifying (a) that the Second Lien Loans, Second Lien Credit Agreement and the other Second Lien Loan Notice in accordance with Documents satisfy each of the requirements hereof at least one day set forth in Section 9.02(i) and Section 9.03(e) of the Credit Agreement and (b) that attached thereto is a true, correct and complete copy of each of the Second Lien Credit Agreement and the other Second Lien Loan Documents.
4.5 The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the requested date for funding such Loan.
Eighth Amendment Effective Date (g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent including fees and the Lenders, an opinion of ▇▇▇expenses invoiced by ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP prior to the Eighth Amendment Effective Date).
4.6 The Administrative Agent shall have received, special counsel for the Loan Parties dated the Closing Date and addressed together with title information previously delivered to the Administrative Agent, satisfactory title information on at least 80% of the Collateral Agent total value of the Oil and Gas Properties of the Borrower and the Lenders, Subsidiaries evaluated in each case in form and substance customary for senior secured credit facilities in transactions of this kindthe most recently delivered Reserve Report.
(h) 4.7 The Administrative Agent shall have received (i) a copy duly executed and notarized deeds of the certificate trust or articles mortgages or supplements to existing deeds of incorporation trust or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as mortgages in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided form satisfactory to the Administrative Agent, together with (in to the case of clause (y)) copies extent necessary so that the Mortgaged Properties represent at least 95% of the financing statements (or similar documents) disclosed by such search total value of the Oil and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity Gas Properties of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed Subsidiaries evaluated in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementmost recently delivered Reserve Report.
(j) 4.8 The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities Control Agreement with respect to each of the Borrower reasonably requested by the Lenders under applicable “know your customer” Obligors’ Deposit Accounts, Securities Accounts and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome Commodity Accounts (other than Excluded Accounts) set forth on any person unless required by applicable LawSchedule 7.25 attached hereto.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) 4.9 The Administrative Agent shall have received a duly executed funds flow memorandum prepayment of outstanding Borrowings in form an aggregate principal amount of at least $60,000,000.
4.10 No Default shall have occurred and substance acceptable be continuing as of the Eighth Amendment Effective Date.
4.11 The Administrative Agent shall have received such other documents as the Administrative Agent or its counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this Eighth Amendment to be effective and to declare the occurrence of the Eighth Amendment Effective Date when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted in Section 12.02 of the Credit Agreement. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 2 contracts
Sources: Credit Agreement (Legacy Reserves Inc.), Credit Agreement (Legacy Reserves Lp)
Conditions Precedent. Each Lender The obligation of the Lenders party hereto and the Administrative Agent to enter into this Second Amendment shall make the Loans to be made by it on the Closing Date subject only to conditioned upon the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement The Administrative Agent shall have been received a copy of this Second Amendment, duly completed and executed and delivered by the Borrower and each Lender; and acknowledged and ratified by EPD, as Guarantor, pursuant to a duly executed Acknowledgement and Ratification of Guarantor in the form of Exhibit A attached hereto.
(b) The Note Administrative Agent shall have been received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Second Amendment Effective Date) of ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for Borrower and EPD, and ▇▇▇▇▇ Lord LLP, counsel for Borrower and EPD, substantially in the forms delivered in connection with the Credit Agreement and reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to (1) the organization and existence of the Borrower and EPD, (2) the authorization of this Second Amendment and any other legal matters relating to the Borrower, EPD, this Second Amendment or the Credit Agreement, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel, and (3) with respect to EPD, the authorization of the Ratification and Acknowledgement of Guarantor attached hereto.
(d) The Administrative Agent shall have received each promissory note requested by a Lender pursuant to Section 2.10(e) of the Credit Agreement, each duly completed and executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements Administrative Agent shall have been duly executed received a certificate, dated the Second Amendment Effective Date and delivered signed by each the President, an Executive Vice President or a Financial Officer of the parties theretoBorrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement, as amended hereby, and Section 2.15(g) hereof.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day all fees and other amounts due and payable on or prior to the requested date for funding such LoanSecond Amendment Effective Date, including, to the extent invoiced prior to closing, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) As of the Second Amendment Effective Date, no Material Adverse Change exists.
(h) The Administrative Agent Lenders shall have received, on behalf of itself, received (i) the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel audited financial statements for the Loan Parties dated Borrower and its Subsidiaries for the Closing Date period ended December 31, 2014, and addressed (ii) the unaudited financial statements for the Borrower and its Subsidiaries and EPD's Form 10-Q for the fiscal quarter ending June 30, 2015.
(i) All necessary governmental and third-party approvals, if any, required to be obtained by the Borrower in connection with this Second Amendment and otherwise referred to herein shall have been obtained and remain in effect (except where failure to obtain such approvals will not have a Material Adverse Effect), and all applicable waiting periods shall have expired without any action being taken by any applicable authority.
(j) The Borrower shall have entered into an amendment to the 364-Day Credit Facility, in form and substance reasonably satisfactory to the Administrative Agent, effective contemporaneous with the Collateral Agent effectiveness hereof, providing for, among other things, that each Lender’s “Applicable Percentage” (as defined therein) thereunder is equal to such Lender’s Applicable Percentage under the Credit Agreement, as amended hereby, as of the effectiveness hereof, and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindAdministrative Agent shall have received a copy thereof.
(hk) As of the Second Amendment Effective Date, the CEGP Exposure shall be zero.
(l) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agentinformation, together with (in the case of clause (y)) copies of the financing statements (documents or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded as it or filed that the Administrative Agent its counsel may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementrequest.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Enterprise Products Partners L P), Revolving Credit Agreement
Conditions Precedent. Each Lender This Amendment shall make become effective and be deemed effective as of the Loans to be made by it on date hereof (the Closing Date subject “Effective Date”) when, and only to when, each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionprecedent shall be satisfied:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Program Agent shall have received (i) a copy five (5) counterparts of this Amendment executed by each of the certificate or articles of incorporation or organizationparties hereto, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate five (5) counterparts of an amendment to the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto Asset Purchase Agreement to which Colonial is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party andparty, in the case of the Borrower, the borrowings hereunder, form and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as substance acceptable to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Program Agent;
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (iib) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Program Agent shall have received a certificate in of the form secretary or assistant secretary of Exhibit Ieach of the Seller, dated the Closing Date Originator and signed the Servicer certifying (i) and attaching true and correct copies of the Charter Documents, together with the certification with respect to any certificate of incorporation or formation by the Chief Financial Officer secretary of Borrowerstate of the jurisdiction of organization of such Person, certifying that Borrower (ii) the names and true signatures of their respective officers authorized to sign this Amendment, and (iii) and attaching copies of the resolutions (or similar authorization, if not a corporation) of such Person’s board of directors (or similar governing body or Persons, if not a corporation) approving this Amendment and the Purchase Agreement as amended hereby and certified copies of all documents evidencing other necessary corporate or limited liability company, as the case may be, action and governmental approvals, if any, with respect to this Amendment and the Purchase Agreement as amended hereby;
(c) the Program Agent shall have received an opinion of counsel to the Seller and Colonial Bank in form and substance acceptable to the Program Agent and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.counsel;
(kd) On the Closing Date, each of the representations and warranties made by the Loan Parties Seller and Colonial Bank in Article V shall be Section 4 below are true and correct in all material respects.correct;
(le) The Lenders no event or circumstance shall have received all documentation and other information required by regulatory authorities with respect to occurred which, in the Borrower reasonably requested by judgment of the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsProgram Agent, including without limitation could have a material adverse effect on financial markets generally or on the USA PATRIOT Actfinancial conditions or operations of the Seller or Colonial Bank; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.and
(mf) The Lenders no Event of Termination or Incipient Event of Termination shall have received the Unaudited Financial Statementsoccurred and be continuing.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Warehouse Loan Purchase Agreement, Warehouse Loan Purchase Agreement (Colonial Bancgroup Inc)
Conditions Precedent. Each Lender shall make the Loans The effectiveness of this Amendment is subject to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement the US Administrative Agent and the Canadian Administrative Agent shall have been received counterparts of this Amendment, duly executed and delivered by the Borrower Borrowers, the Guarantors and each Guarantorthe Majority Lenders.
(b) The Note the US Administrative Agent shall have been received new US Notes in favor of all Lenders requesting the same, duly executed and delivered by the US Borrower, in form and substance satisfactory to the US Administrative Agent and such Lenders.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The US Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an favorable written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Credit Parties, covering such matters relating to the this Amendment and the Loan Parties dated Documents as the Closing Date US Administrative Agent shall reasonably request and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindsatisfactory to the US Administrative Agent. The Borrowers hereby request such counsel to deliver such opinions.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (iid) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The US Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial a Responsible Officer of Borrower, the US Borrower certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of (A) after giving effect to the Closing Date.
(k) On the Closing DateAmendment, the representations and warranties made by the Loan Parties contained in Article V shall be IV of the Credit Agreement and the other Loan Documents are true and correct, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the representations and warranties contained in all material respectssubsection (a) of Section 4.4 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 5.2 of the Credit Agreement; and (B) no Default or Event of Default exists and is continuing.
(le) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The US Administrative Agent shall have received a duly executed funds flow memorandum true and complete list of all Certificated Equipment (as defined in the US Security Agreement) owned by any U.S. Credit Party, in form and substance acceptable satisfactory to the US Administrative Agent.
(f) all fees and expenses payable to the US Administrative Agent, the Canadian Administrative Agent and the Lenders (including the reasonable fees and expenses of counsels to the US Administrative Agent and the Canadian Administrative Agent) invoiced prior to this date shall have been paid in full.
(g) the US Administrative Agent shall have received such other documents as the US Administrative Agent or special counsel to the US Administrative Agent may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to day (the "Third Amendment Effective Date") on which each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionprecedent has been satisfied:
(a) This Agreement the Administrative Agent shall have been duly executed and delivered by the Borrower and each Guarantor.
received counterparts of (bi) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been this Amendment, duly executed and delivered by each of the parties thereto.
Credit Parties, the Required Lenders, the Tranche D Lenders and by the Administrative Agent and the Canadian Administrative Agent, (dii) The Blackstone Consents shall have been Notes duly executed and delivered by the Company in substantially the form of Exhibit A(amd) to evidence the Tranche D Term Loan, (iii) the Pledge Agreement, duly executed and delivered by each of Credit Party, (iv) the parties thereto.
(e) The Closing Date Subordination Agreements shall have been Security Agreement, duly executed and delivered by each Credit Party, and (v) the Mortgages, duly executed and delivered by the applicable Credit Parties, together with a certificate of the parties thereto.Secretary or Assistant Secretary of the Company and each other Credit Party as to the incumbency and specimen signatures of the officers of the Company and each other Credit Party who are authorized to execute such Credit Documents and each other document to be executed and delivered by the Company or any other Credit Party pursuant hereto;
(fb) The the Administrative Agent shall have received a Committed Loan Notice in accordance certified copy of the resolutions of the Board of Directors of the Company and each other Credit Party evidencing its approval of this Amendment, the Tranche D Notes, the Collateral Documents and the other Credit Documents and matters contemplated hereby, and a certified copy of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the requirements hereof at least one day prior to Tranche D Notes and the requested date for funding such Loan.other Credit Documents;
(gc) The the Administrative Agent shall have received, on behalf received opinions of itself, the Collateral Agent and the Lenders, an opinion of Isra▇▇ ▇. ▇▇▇▇▇, ▇▇neral Counsel of the Company, and Ball▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Ingersoll, LLP, special acting as counsel for to each of the Loan Parties dated the Closing Date and addressed to the Administrative AgentCredit Parties, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.satisfactory to the Administrative Agent and the Tranche D Arranger;
(hd) The the Administrative Agent shall have received (i) a copy all documents it may reasonably request relating to the existence and good standing of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party Credit Parties and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) authorization, execution and delivery of each Loan Party this Amendment and Project Company as of a recent datethe other Credit Documents and other matters relevant hereto, from such Secretary of State or similar Governmental Authority all in form and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as substance satisfactory to the incumbency Administrative Agent and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.its counsel in their reasonable discretion;
(ie) The the Administrative Agent shall have received the results of (x) searches from a Responsible Officer of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect Company a certificate to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party effect that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On date hereof and as of the Closing Date, the Third Amendment Effective Date all representations and warranties made by the Loan Parties Company and each other Credit Party in Article V shall be this Amendment and each other Credit Document are true and correct in all material respects.;
(lf) The Lenders the Company shall have received all documentation (or shall be unconditionally entitled to receive) $775,000,000 in gross proceeds from (i) the Senior Notes or the Bridge Notes and other information required by regulatory authorities with respect (ii) the Tranche D Term Loans extended hereunder and shall have applied the Net Cash Proceeds thereof (or shall have made arrangements reasonably satisfactory to the Borrower reasonably requested by Administrative Agent and the Lenders under applicable “know your customer” Tranche D Arranger to apply such Net Cash Proceeds) in a manner consistent with the sources and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior uses table set forth on Schedule VIII to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.Credit Agreement;
(mg) The Lenders no Default or Event of Default shall have received the Unaudited Financial Statements.occurred and be continuing;
(nh) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Collateral Agent shall have received estoppel letters (except to the extent the Collateral Agent shall have agreed to give the Credit Parties additional time, not to exceed 60 days from the Third Amendment Effective Date, to deliver any such item)
(i) delivery in pledge of stock certificates representing all (or, in the case of a First Tier Foreign Subsidiary, 65%) of the interests in any Domestic Subsidiary or First Tier Foreign Subsidiary of the Company held or beneficially owned by any Credit Party (unless such stock certificates constitute or represent Excluded Assets), together with assignments thereof duly endorsed in blank by the registered holder thereof, (ii) perfection by control over all other investment property constituting Collateral other than the Excluded Assets, and (iii) financing statements covering all personal property and fixtures constituting Collateral other than the Excluded Assets and duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower Credit Parties in form sufficient for filing in all jurisdictions that are scheduled as filing jurisdictions in the Collateral Documents or as to which the filing of financing statements may reasonably be requested by any Agent;
(i) the principal amount of and substance acceptable all interest due and payable on the Tranche C Term Loan shall have been repaid in full;
(j) the Company shall demonstrate minimum current availability under the Revolving Committed Amount of $400,000,000 after giving effect to all the transactions contemplated hereby; and
(k) each Lender party to the Administrative Agent.
Credit Agreement who executes this Amendment on or before 5:00 P.M. Eastern Standard Time on November 10, 2000 (rprovided this Amendment is approved by the Required Lenders) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating an amendment fee equal to 0.25% of the lien sum of CPF Capital & Trading, LLC shall have been filed in each Lender's Commitment Percentage of the appropriate filing office in form Revolving Loans and substance acceptable the Tranche A Term Loan prior to giving effect to transactions contemplated hereby (without giving effect to the Administrative AgentTranche D Term Loan).
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Hercules Inc), Credit Agreement (Hercules Inc)
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it on the Closing Date subject only to effective upon satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received counterparts of this Amendment executed by a Committed Responsible Officer of each Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
Party, each Lender (g) The Administrative Agent shall have received, on behalf of itselfincluding each Exiting Lender), the Collateral Agent L/C Issuer, the Swingline Lender, and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.;
(hb) The the Administrative Agent shall have received the following: (i) a copy copies of the certificate or articles of incorporation or organization, including all amendments thereto, Organic Documents of each Loan Party certified to be true and Project Company, certified, if applicable, complete as of a recent date by the Secretary of State appropriate Governmental Authority of the state jurisdiction of its organizationorganization and certified by a Responsible Officer of such Loan Party to be true and correct as of the Second Amendment Effective Date (or, and a certificate as to any such Organic Documents that have not been amended, modified or terminated since the good standing (where relevant) of each Loan Party and Project Company as of a recent dateClosing Date, from certifying that such Secretary of State Organic Documents have not been amended, modified or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated terminated since the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are remain in full force and effect, and true and complete, in the form delivered to the Administrative Agent on the Closing Date); (Cii) that the certificate such certificates of resolutions or articles other action, incumbency certificates, and/or other certificates of incorporation or organization Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and Project Company have not been amended since capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment, the date of Amended Credit Agreement and the last amendment thereto shown on other Loan Documents to which such Loan Party is a party; and (iii) such documents and certifications as the certificate of the Secretary of State furnished pursuant Administrative Agent may reasonably require to clause (i) aboveevidence that each Loan Party is duly organized or formed, and (D) as is validly existing, in good standing and qualified to the incumbency and specimen signature engage in business in its jurisdiction of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.organization;
(ic) The the Administrative Agent shall have received the results an opinion or opinions of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to counsel for the Loan Parties in Parties, dated the states or other jurisdictions of formation of such Person Second Amendment Effective Date and with respect to such other locations and names provided addressed to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Agent and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party theretoLenders, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.;
(rd) The the Administrative Agent shall have received evidence that projections and a UCC-3 termination statement terminating budget for the lien of CPF Capital & TradingBorrower and its Subsidiaries for the five (5) years following the Second Amendment Effective Date, LLC shall have been filed in the appropriate filing office in form and substance acceptable satisfactory to the Administrative Agent.;
(se) The since December 31, 2021, there shall not have occurred any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect; CHAR1\1892749v6
(f) the Administrative Agent shall have received: (i)(A) searches of UCC filings in the jurisdiction of organization of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens, and (B) tax lien and judgment searches; (ii) searches of ownership of registered and pending Intellectual Property in the United States Copyright Office and the United States Patent and Trademark Office and duly executed notices of grant of security interest in the form required by the Collateral Documents as are necessary to perfect the Administrative Agent’s security interest in such Intellectual Property; (iii) completed UCC financing statements for each appropriate jurisdiction as is necessary to perfect the Administrative Agent’s security interest in the Collateral; and (iv) copies of insurance certificates and endorsements of insurance evidencing insurance meeting the requirements set forth in the Amended Credit Agreement and in the Collateral Documents;
(g) the Administrative Agent shall have received a duly executed funds flow memorandum Solvency Certificate signed by a Responsible Officer of the Borrower certifying as to the financial condition, solvency and related matters of the Borrower and its Subsidiaries on a Consolidated basis after giving effect to the transactions contemplated herein and by the Amended Credit Agreement to occur on the Second Amendment Effective Date;
(h) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in form Sections 2(e), (i), (j) and substance acceptable (k) have been satisfied;
(i) all board of director (or equivalent), governmental, shareholder and material third party consents and approvals necessary in connection with this Amendment, the Amended Credit Agreement and the other Loan Documents shall have been obtained and shall be in full force and effect;
(j) there shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that could reasonably be expected to be adversely determined which, if so adversely determined, could reasonably be expected to have a Material Adverse Effect;
(k) after giving effect to the transactions contemplated herein and by the Amended Credit Agreement to occur on the Second Amendment Effective Date, (i) no Default shall have occurred and be continuing, and (ii) the representations and warranties of the Borrower and each other Loan Party contained in this Amendment, the Amended Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall (A) with respect to representations and warranties that contain a materiality qualification, be true and correct on and as of the Second Amendment Effective Date by reference to the facts and circumstances existing as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and (B) with respect to representations and warranties that do not contain a materiality qualification, be true and correct in all material respects on and as of the Second Amendment Effective Date by reference to the facts and circumstances existing as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2(k)(ii), the representations and warranties contained in Section 5.06 of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Existing Credit Agreement;
(l) the Borrower shall have (or concurrently with the Credit Extensions to be made on the Second Amendment Effective Date)
(i) paid all accrued and unpaid interest on the loans outstanding under the Existing Credit Agreement to the Second Amendment Effective Date, and (ii) paid all accrued fees owing to the lenders under the Existing Credit Agreement to the Second Amendment Effective Date; CHAR1\1892749v6
(m) all of the existing Debt of the Borrower and its Subsidiaries (other than Debt permitted to exist pursuant to Section 7.01 of the Amended Credit Agreement) shall be repaid in full, all commitments in connection therewith shall be terminated, and all guarantees, liens and security interests related thereto shall be terminated;
(n) the Administrative Agent shall have received a Loan Notice with respect to any Revolving Loans or Term A Loans, as applicable, to be advanced on, or to remain outstanding on, the Second Amendment Effective Date;
(i) the Administrative Agent and each Lender shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Administrative Agent or such Lender, including U.S. Department of Treasury, Office of Foreign Assets Control, Foreign Corrupt Practices Act and “know your customer” due diligence; (ii) the Loan Parties shall have provided to the Administrative Agent and each Lender the documentation and other information requested by the Administrative Agent or such Lender in order to comply with applicable law, including the PATRIOT Act; and (iii) if any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Loan Party shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party;
(p) the Administrative Agent shall have received all fees required to be paid on or prior to the Second Amendment Effective Date to the Administrative Agent, the Lenders, or BofA Securities; and
(q) the Loan Parties shall have paid all expenses of the Administrative Agent required to be reimbursed by the Loan Parties, including the reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Second Amendment Effective Date, plus such additional amounts of such reasonable fees, charges and disbursements of such counsel as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided, that, such estimate shall not thereafter preclude a final settling of accounts among the Loan Parties and the Administrative Agent). Without limiting the generality of the provisions of Section 9.03(c)(vi) of the Amended Credit Agreement or the last sentence of Section 9.04 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 2, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Second Amendment Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Commercial Vehicle Group, Inc.), Credit Agreement (Commercial Vehicle Group, Inc.)
Conditions Precedent. Each Lender This Action shall make be effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement The Administrative Agent shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly received counterparts of this Action, executed and delivered by each of the other parties theretohereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(fb) The Administrative Agent shall have received a Committed certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with respect to [***] and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Notice Agreement is true and correct in accordance with all material respects as of the requirements hereof at least one day prior Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the requested date for funding Effective Date (unless such Loanrepresentation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).
(gc) The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from [***] and [***] in connection with the Subject Fund Transactions.
(d) Each of the Administrative Agent and each Group Agent shall have receivedreceived an opinion, on behalf dated no earlier than the Effective Date, of itself, the Collateral Agent and the Lenders, an opinion of W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties, the Borrower Subsidiary Parties dated the Closing Date and addressed SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the LendersMajority Group Agents, in with respect to the Subject Fund Transactions.
(e) Each of the Administrative Agent and each case Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in form and substance customary for senior secured credit facilities in transactions of this kindreasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.
(hf) The Administrative Agent and the Collateral Agent shall have received (i) a copy searches of UCC filings in the certificate or articles jurisdiction of incorporation or organizationformation, including all amendments theretoas applicable, of each Loan Party of the New Entities and Project Companythe Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral in respect of the New Entities (the “New Collateral”), certified(ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), if applicable(c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(g) The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], the Collateral Agent and the Borrower, dated as of a recent date by the Secretary of State of the state of its organizationEffective Date, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Effective Date, (Biii) that a Joinder Agreement in the form attached thereto is a true as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***] and complete copy the Collateral Agent, dated as of resolutions duly adopted the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as Administrative Agent with respect to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveNew Entities.
(i) The Administrative Agent UCC financing statements relating to the New Collateral shall have received been duly filed in each office and in each jurisdiction where required in order to create and perfect the results of first priority Lien and security interest set forth in the Collateral Documents (x) searches of the Uniform Commercial Code filings (or equivalent filings) as supplemented and (y) judgment and tax lien searches, made with respect to as such term is defined in the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative AgentAgreement, together with (in the case of clause (y)as amended) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Borrower shall have properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and the Parent Pledge pledged interests in [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies.
(i) Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been duly executed and delivered by each Loan Party that is satisfied with respect to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee RequirementSubject Fund Transactions.
(j) The Administrative Agent shall have received a certificate for its own account all costs and expenses described in the form Section 6 of Exhibit Ithis Action, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall for which invoices have been paid presented in full (or paid concurrently connection herewith. [ Signature Page to Required Group Agent Action No. 10 ] [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the occurrence of the Closing Date)Securities and Exchange Commission.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Required Group Agent Action No. 10 (Solarcity Corp)
Conditions Precedent. Each Lender shall make The effectiveness of this Agreement is subject to the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed counterparts of this Agreement, duly executed by the Borrowers, each Guarantor and the Required Lenders;
(b) the Administrative Agent shall have received all fees required to be paid to it and to the Lenders, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Effective Date;
(c) the Administrative Agent shall have received true and correct copies of the documents evidencing the second lien term loan facility to the Borrower (such facility, the “Second Lien Facility”, and such documents, the “Second Lien Loan Notice Documents”), which documents shall be executed by all parties thereto and be in form and substance satisfactory to the Administrative Agent;
(d) the Administrative Agent, the Borrowers and the agent for the Second Lien Facility shall have entered into an intercreditor agreement in form and substance satisfactory to the Administrative Agent;
(e) the closing of the Second Lien Facility shall take place on the Effective Date;
(f) the Borrower shall prepay, on the Effective Date and in accordance with the requirements hereof at least one day prior provisions of Section 2.10 of the Credit Agreement, Revolving Loans in an amount equal to 100% of the requested date for funding such Loan.net proceeds of the Second Lien Facility, which amount shall not be less than $65,000,000;
(g) The the Administrative Agent shall have receivedreceived such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, authorization of the transactions contemplated hereby, the authority of any natural Person executing any of the Loan Documents on behalf of itselfany Loan Party and any other legal matters relating to the Loan Parties, this Agreement or the Collateral transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel and to include, without limitation, copies of good standing and existence certificates for the LendersLoan Parties as may be delivered as a condition to the closing of the Second Lien Facility; and
(h) the Administrative Agent shall have received the executed legal opinions of (i) King & Spalding, an opinion of Delaware and New York counsel to the Borrowers and their Subsidiaries, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP& Blitzer (APLC), special Louisiana counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent Borrowers and the Lenders, in each case in form their Subsidiaries and substance customary for senior secured credit facilities in transactions of this kind.
(hiii) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as in-house counsel to the good standing (where relevant) of each Loan Party Borrowers and Project Company as of a recent datetheir Subsidiaries, from which opinions shall cover such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as other matters incident to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned transactions contemplated by another officer this Agreement as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementrequire.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Amedisys Inc)
Conditions Precedent. Each Lender This Amendment shall make become effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionconditions:
(a) This Agreement shall have been Receipt by the Administrative Agent of counterparts of this Amendment duly executed and delivered by the Borrower Borrowers, the Guarantors, the Administrative Agent, the Required Lenders, the Voting Participants and each Guarantor.Lender with a Term Loan O Commitment;
(b) The Note shall have been duly executed and delivered Receipt by the Borrower.Administrative Agent of the following:
(ci) Each Collateral Document a certificate of each Loan Party dated as of the Fourth Amendment Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Term Loan O, as well as a such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization and (B) certifying that, before and after giving effect to the Term Loan O, (x) the representations and warranties contained in Article V of the Term Loan Agreement and the other Loan Documents are true and correct as of such date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.01 of the Term Loan Agreement shall have been duly be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Term Loan Agreement, and (y) no Default exists;
(ii) a Note executed and delivered by each of the parties thereto.Borrowers in favor of each Lender requesting a Note for the Term Loan O; and
(diii) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(eA) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an legal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Corporate Secretary of the Borrowers and Guarantors, and (B) a legal opinion of ▇▇▇▇▇▇▇ Coie LLP, special counsel to the Borrowers, in each case dated as of the Fourth Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) The payment by the Borrowers of all fees and expenses due and payable as of the Fourth Amendment Effective Date, including the reasonable out-of-pocket costs and expenses of the Administrative Agent and the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇ LLPPLLC, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This First Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (such date, the “First Amendment Effective Date”) when each of the following conditions precedentis satisfied (or waived in accordance with Section 10.01 of the Credit Agreement):
4.1 The Administrative Agent’s receipt of the following, unless otherwise waived by each in form and substance reasonably satisfactory to the Lenders in their sole discretionAdministrative Agent:
(a) This Agreement shall have been duly executed from each of the Lenders (including the Exiting Lenders) and delivered the Borrower, counterparts (in such number as may be requested by the Borrower and each Guarantor.Administrative Agent) of this First Amendment signed on behalf of such Person;
(b) The Note shall have been duly executed and delivered an officer’s closing certificate signed by a Responsible Officer of the Borrower, on behalf of itself and the other Loan Parties, certifying as to each of the following as of the First Amendment Effective Date (after giving effect to this First Amendment), and each such certification shall be true and correct:
(i) all of the representations and warranties contained in each Loan Document to which it is a party are true and correct (or, in the case of representations and warranties not qualified as to materiality, true and correct in all material respects), except to the extent any such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct as of such earlier date, and the representations and warranties contained in Section 5.05(a) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 6.01(a) and 6.01(b) of the Credit Agreement; and
(ii) no Default or Event of Default has occurred and is continuing.
(c) Each Collateral Document shall have been duly executed a certificate of incumbency signed by the secretary or assistant secretary of each Loan Party evidencing the identity, authority and delivered capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this First Amendment, the Credit Agreement and the other Loan Documents to which such Loan Party is a party, together with a certification of incumbency attesting to the identity, authority and capacity of such secretary or assistant secretary executing such certificate on behalf of each Loan Party signed by a Responsible Officer of such Loan Party, and resolutions with respect to each Loan Party authorizing each such Loan Party to enter into amendments to the Existing Credit Agreement of the parties thereto.this type (including this First Amendment);
(d) The Blackstone Consents shall either (i) copies of each Loan Party’s Organization Documents, as amended, modified, or supplemented as of the First Amendment Effective Date or (ii) confirmation that there have been no changes to each Loan Party’s Organization Documents since the Effective Date, certified by the secretary or assistant secretary of such Loan Party together with certificates of status with respect to each Loan Party, such certificates indicating that such Loan Party is in good standing in its jurisdiction of organization and each other jurisdiction in which its failure to be duly executed and delivered by each of the parties thereto.qualified or licensed would have a Material Adverse Effect;
(e) The Closing Date Subordination Agreements shall copies of all Uniform Commercial Code, judgment and tax lien search results reasonably requested by the Administrative Agent, together with copies of the financing statements (or similar documents) disclosed in such search results, and accompanied by evidence that any Liens indicated in any such financing statement that are not Permitted Liens have been duly executed and delivered by each of or will be released or terminated concurrently with the parties thereto.First Amendment Effective Date (or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent);
(f) The Administrative Agent shall have received evidence that the Collateral Agent, on behalf of the Secured Parties, has a Committed Loan Notice in accordance with valid and perfected first-priority Lien (subject to Permitted Prior Liens) on all of the requirements hereof at least one day prior to the requested date for funding such Loan.Collateral;
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent Agent, the L/C Issuers, the Swing Line Lender and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.Lender; and
(h) The Administrative Agent shall have received (i) a copy on behalf of the certificate or articles of incorporation or organizationLenders, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date (i)(A) the financial statements required by the Secretary of State Section 6.01(a) of the state of its organizationExisting Credit Agreement for the fiscal years ended December 31, 2015, December 31, 2016 and December 31, 2017, and a certificate as to (B) the good standing (where relevantfinancial statements required by Section 6.01(b) of each Loan Party and Project Company as of a recent datethe Existing Credit Agreement for the fiscal quarter ended March 31, from such Secretary of State or similar Governmental Authority 2018 and (ii) a certificate customary forecasts of the Secretary or Assistant Secretary Borrower prepared by management of each Loan Party dated the Closing Borrower; and
(i) evidence satisfactory to it that no amounts shall be owing under the Existing Credit Agreement to any Exiting Lender.
4.2 All (a) fees required to be paid by the Borrower on the First Amendment Effective Date and certifying under (Ai) that attached certain Commitment and Engagement Letter, dated as of June 4, 2018 (the “Engagement Letter”), among the Borrower, TRP, the Administrative Agent, the Arrangers and the other parties party thereto is a true and complete copy (ii) that certain Fee Letter, dated as of June 4, 2018 (the by-laws or operating “Fee Letter”), among the Borrower, TRP, the Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, and (b) to the extent invoiced in reasonable detail at least two (2) Business Days before the First Amendment Effective Date (or limited liability company) agreement of each Loan Party and Project Company such later time as the Borrower may agree in effect its reasonable discretion), reasonable out-of-pocket expenses required to be paid by the Borrower on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by First Amendment Effective Date under the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party andEngagement Letter, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles each of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (ia) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveb), shall have been paid.
(i) 4.3 The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received at least four (4) days prior to the First Amendment Effective Date all documentation and other information about the Borrower and the Guarantors that the Lenders have reasonably determined is required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered , and have requested at least 10 eleven (11) days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing First Amendment Effective Date).
(p) [intentionally omitted]
(q) . The Administrative Agent shall have is hereby authorized and directed to declare this First Amendment to be effective when it has received estoppel letters duly executed by Yingli Green Energy Americasdocuments confirming or certifying, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to satisfaction of the Administrative Agent.
(r) The Administrative Agent , compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted in Section 10.01 of the Credit Agreement. Such declaration shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Tradingbe final, LLC shall have been filed in the appropriate filing office in form conclusive and substance acceptable binding upon all parties to the Administrative AgentCredit Agreement for all purposes.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionconditions:
(a) This Agreement shall have been Receipt by the Administrative Agent of counterparts of this Amendment duly executed and delivered by the Borrower Borrowers, the Guarantors, the Administrative Agent, the Required Lenders, the Voting Participants and each Guarantor.Lender with a Commitment with respect to any New Term Loan;
(b) The Note shall have been duly executed and delivered Receipt by the Borrower.Administrative Agent of the following:
(ci) Each Collateral Document a certificate of each Loan Party dated as of the Tenth Amendment Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the New Term Loan, as well as such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization and (B) certifying that, before and after giving effect to the New Term Loan, (x) the representations and warranties contained in Article V of the Amended Term Loan Agreement and the other Loan Documents are true and correct as of such date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.01 of the Amended Term Loan Agreement shall have been duly be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Amended Term Loan Agreement, and (y) no Default exists;
(ii) a Note executed and delivered by each of the parties thereto.Borrowers in favor of each Lender requesting a Note for any New Term Loan;
(diii) The Blackstone Consents shall have been duly executed (A) a legal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and delivered by each Corporate Secretary of the parties thereto.
Borrowers and Guarantors, and (eB) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the Borrowers, in each case dated as of the Tenth Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent; and
(iv) evidence that the Borrowers have executed customary membership agreements with AgWest.
(c) The payment by the Borrowers of all fees and expenses due and payable as of the Tenth Amendment Effective Date, including the reasonable out-of-pocket costs and expenses of the Administrative Agent and the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇ LLP▇▇▇▇, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender The amendments contained herein shall make only be effective upon the Loans to be made satisfaction or waiver by it on the Closing Date subject only to Administrative Agent and Consenting Lenders of each of the following conditions precedentprecedent (the date of such satisfaction or waiver, unless otherwise waived by the Lenders in their sole discretion:“Second Amendment Effective Date”):
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice each of the following documents or instruments in accordance with the requirements hereof at least one day prior form and substance reasonably acceptable to the requested date for funding such Loan.Administrative Agent:
(gi) The the execution and delivery of this Amendment by the Borrowers, the Administrative Agent shall have receivedAgent, all of the Consenting Lenders and, solely with respect to Section 2.3(c) hereof, all of the Exiting Lenders;
(ii) a certificate from the chief financial officer of the Lead Borrower certifying that the Lead Borrower and its subsidiaries, on behalf of itself, the Collateral Agent a consolidated basis after giving effect to this Amendment and the Lenderstransactions contemplated hereby (the “Second Amendment Transactions”), are Solvent;
(iii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenderseach Lender, in each case in form and substance customary for senior secured credit facilities in transactions satisfactory to the Administrative Agent addressing, as applicable, the authorization, execution and enforceability of this kind.the Amendment, the continuing security interests under the Loan Documents, the absence of conflicts with applicable law and certain other matters;
(hiv) The a certificate from a Responsible Officer of each Loan Party, in form and substance reasonably satisfactory to the Administrative Agent shall have received (i) a copy and dated as of the certificate Second Amendment Effective Date, certifying that after giving effect to the Second Amendment Transactions (w) each such Loan Party is in good standing, (x) its organizational documents have not changed since the Closing Date (or articles applicable joinder date) or attaching the current organizational documents, (y) attaching certificates of incorporation resolutions or organization, including all amendments thereto, other corporate action with respect to the Second Amendment Transactions and (z) attaching incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and Project Company, certified, if applicable, capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Amendment;
(v) a certificate from a Responsible Officer of the Lead Borrower certifying and attaching a calculation showing that as of the Second Amendment Effective Date, Minimum Excess Availability under the Amended Credit Agreement, after giving effect to any Credit Extensions made on the Second Amendment Effective Date, is equal to or greater than $150,000,000; and
(vi) an updated Borrowing Base Certificate giving effect to the Second Amendment Transactions;
(vii) a recent date by the Secretary of State certificate from an Authorized Officer of the state of its organizationLead Borrower certifying that, and a certificate as after giving effect to the good standing Second Amendment Transactions, (where relevantA) the representations and warranties of the Lead Borrower and each other Loan Party contained in Article V of the Amended Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, (i) which are qualified by materiality shall be true and Project Company as of a recent datecorrect, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted which are not qualified by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V materiality shall be true and correct in all material respects., in each case, on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct, or true and correct in all material respects, as the case may be, as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Amended Credit Agreement shall be deemed to refer to the most recent consolidated statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01Error! Reference source not found. of the Amended Credit Agreement, and (B) no Default exists or would arise as a result of the consummation of the Second Amendment Transactions; and
(lb) The the Lead Borrower shall have paid (i) to the Administrative Agent, for the benefit of each Consenting Lender (but not to any Exiting Lenders), any fees due in connection with this Amendment and (ii) all invoiced and accrued fees and reasonable and documented expenses of the Administrative Agent and its designated affiliates in respect of this Amendment (including the reasonable and documented fees and expenses of counsel for the Administrative Agent in respect of this Amendment);
(c) payment of all other fees required to be paid to the Administrative Agent and the Consenting Lenders on or before the Second Amendment Effective Date and all expenses in connection with this Amendment required to be reimbursed in accordance with Section 10.04 of the Credit Agreement;
(d) no order, injunction or judgment has been entered into prohibiting the closing of the Amendment;
(e) the Administrative Agent shall have received evidence of insurance required to be maintained;
(f) the Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering laws, rules and regulations, including without limitation a Beneficial Ownership Certificate or otherwise under the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered Patriot Act and requested at least 10 days five (5) Business Days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.Second Amendment Effective Date;
(mg) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. receive reasonably recent UCC searches with respect to their existing liens against each of the Borrower in form and substance acceptable to the Administrative AgentLoan Parties.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall The agreement of Secured Party to make the Loans Loan -------------------- to be made by Debtor and to enter into this Agreement and each of the other Documents to which it is a party [Security Agreement] on the Closing Date is subject only to the satisfaction (or written waiver by Secured Party) of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement Secured Party shall have been received each of the following documents, duly authorized, executed and delivered by all parties thereto, in form and substance satisfactory to the Borrower Secured Party:
(i) this Agreement and the Supplement hereto dated the Closing Date; and
(ii) each Guarantor.Engine Note;
(b) The Note the Secured Party shall have been received a duly executed officer's incumbency certificate of Debtor, in form and delivered by substance satisfactory to the Borrower.Secured Party;
(c) Each Collateral Document the Secured Party shall have been duly executed received independent insurance certificates and delivered by each of broker's undertaker letter, in form and substance satisfactory to the parties thereto.Secured Party relating to the Engines;
(d) The Blackstone Consents the Secured Party each shall have been duly executed received true and delivered by each complete copies of (i) the Articles of Incorporation of Debtor; (ii) the By-laws of Debtor; (iii) the resolutions of the parties thereto.Boards of Directors or other competent authority of Debtor with respect to the due authorization of the transactions contemplated by this Agreement and the other Operative Documents; and (iv) good standing certificates for Debtor in the States of Delaware and New York, certified by the Secretary of Debtor;
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent Secured Party shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
legal opinions of (gi) The Administrative Agent shall have receivedHewes, on behalf of itselfGelband, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to Debtor and (ii) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇, special counsel for in Oklahoma City, Oklahoma, in each case, in form and substance satisfactory to the Loan Parties dated the Closing Date Secured Party and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.Secured Party;
(hf) The Administrative Agent the Secured Party shall have received (i) have received a copy preliminary July, 1997 income statement of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and Debtor; (ii) a certificate have received the financial statements of Debtor as of December 31, 1996 and the Secretary or Assistant Secretary related statements of each Loan Party dated earning and cash flow of Debtor for the Closing Date fiscal year and certifying (A) that attached thereto is a true and complete copy the preliminary financial statements of the by-laws or operating (or limited liability company) agreement Debtor as of each Loan Party and Project Company as June 30, 1997, which statements shall be prepared in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party accordance with GAAP and, in the case of the Borrowerannual financial statements, accompanied by an unqualified auditor's report of a firm of independent certified public accountants of recognized national standing satisfactory to the borrowings hereunderSecured Party; (iii) have received satisfactory assurances that since December 31, 1996, there has been no material adverse change in the financial condition, business, profits, prospects or operations of Debtor; and (iv) have determined that the financial results set forth in such statements are acceptable to it (in Secured Party's sole discretion);
(g) the Secured Party shall have received a copy, certified as true and correct by an officer of Debtor of each approval and consent, if any, of any governmental or other regulatory authorities in the United States, which are necessary for the execution, performance and delivery of each of the Documents by each of the parties thereto;
(h) the Secured Party shall have received evidence satisfactory to it that the Engines and all other Mortgaged Property are the property of Debtor free and clear of all Liens and adverse claims or rights and that such resolutions have not been modifiedthe Secured Party has, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown will on the certificate of the Secretary of State furnished pursuant to clause (i) aboveClosing Date have, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.a first priority perfected Lien therein;
(i) The Administrative Agent no Default or Event of Default shall have received occurred and be continuing and no Event of Loss or event which, with the results passage of (x) searches time or the giving of the Uniform Commercial Code filings (notice or equivalent filings) and (y) judgment and tax lien searchesboth, made would constitute an Event of Loss with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement any Engine shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.occurred;
(j) The Administrative Agent no action or proceeding shall have received a certificate been instituted nor shall any governmental action be threatened before any court or governmental agency, nor shall any order, judgment or decree have been issued or proposed to be issued by any court or governmental agency pertaining in any way to the form of Exhibit I, dated Engines or the Closing Date and signed transactions contemplated by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.this Agreement;
(k) On there shall not have been, in the Closing Dateopinion of the Secured Party, any material adverse change in the business, operations, property or condition (financial or other) of Debtor;
(l) the representations and warranties made by the Loan Parties Debtor in Article V this Agreement and each other Document shall be true and correct in all material respects.on and as of the Closing Date and the Debtor shall provide a certificate of an appropriate officer of Debtor to such effect;
(lm) The Lenders on the Closing Date, the following statements shall be true and the Secured Party shall have received evidence satisfactory to it to the effect that:
(1) Debtor has authority to operate the Engines and the aircraft on which the Engines are installed; and
(2) this Agreement and the Supplement have been duly filed with the FAA for recordation;
(n) a Uniform Commercial Code financing statement or statements covering all documentation the security interests created by this Agreement shall have been executed and other information required delivered by regulatory authorities Debtor, and such financing statement or statements shall have been duly filed in all places necessary or advisable, and any additional Uniform Commercial Code financing statements deemed advisable by the Mortgagee shall have been executed and delivered by Debtor and duly filed;
(o) the Secured Party shall have received evidence satisfactory to it that any Liens with respect to the Borrower reasonably requested by Engines shall have been released and any necessary release documentation shall have been filed with the Lenders under FAA or other applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts agency;
(p) all appropriate action required to ensure that such requests are delivered at least 10 days have been taken prior to the Closing Date by the Federal Aviation Administration or any governmental or political agency, subdivision or instrumentality of the United States in connection with the transactions contemplated hereby shall have been taken and are not unduly burdensome all orders, permits, waivers, authorizations, exemptions and approvals of such entities required to be in effect on any person unless required by applicable Law.the Closing Date in connection with the transactions contemplated hereby shall have been issued, and all such orders, permits, waivers, authorizations, exemptions and approvals shall be in full force and effect on the date hereof and on the Closing Date;
(mq) The Lenders Secured Party shall have received proof of ownership, satisfactory to Secured Party, from Debtor as to Debtor's ownership of the Engines, including bills of sale for such Engines;
(r) Secured Party shall have received the Unaudited Financial Statements.current engine status reports for each Engine, certified by a vice president of quality assurance of Debtor as being "true, accurate and correct";
(ns) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent Secured Party shall have received estoppel letters duly executed by Yingli Green Energy Americasan appraisal and inspection report, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable satisfactory to the Administrative Agent.it; and
(rt) The Administrative Agent the Secured Party shall have received evidence that a UCC-3 termination statement terminating such further documents, instruments and agreements as it shall reasonably require in connection with the lien of CPF Capital & Trading, LLC shall have been filed in transactions contemplated by the appropriate filing office in form and substance acceptable to the Administrative AgentDocuments.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Security Agreement (Tower Air Inc)
Conditions Precedent. Each Lender This Action shall make be effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement The Administrative Agent shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly received counterparts of this Action, executed and delivered by each of the other parties theretohereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(fb) The Administrative Agent shall have received a Committed Loan Notice in accordance certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with the requirements hereof at least one day prior respect to the requested date for funding [***] and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Agreement is true and correct in all material respects as of the Effective Date (unless such Loanrepresentation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).
(gc) The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from [***] in connection with the Subject Fund Transactions.
(d) Each of the Administrative Agent and each Group Agent shall have receivedreceived an opinion, on behalf dated no earlier than the Effective Date, of itself, the Collateral Agent and the Lenders, an opinion of W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties, the Borrower Subsidiary Parties dated the Closing Date and addressed SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the LendersMajority Group Agents, in with respect to the Subject Fund Transactions.
(e) Each of the Administrative Agent and each case Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in form and substance customary for senior secured credit facilities in transactions of this kindreasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.
(hf) The Administrative Agent and the Collateral Agent shall have received (i) a copy searches of UCC filings in the certificate or articles jurisdiction of incorporation or organizationformation, including all amendments theretoas applicable, of each Loan Party of the New Entities and Project Companythe Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral in respect of the New Entities (the “New Collateral”), certified(ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), if applicable(c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(g) The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], the Collateral Agent and the Borrower, dated as of a recent date by the Secretary of State of the state of its organizationEffective Date, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Effective Date, (Biii) that a Joinder Agreement in the form attached thereto is a true as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***] and complete copy the Collateral Agent, dated [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. as of resolutions duly adopted the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as Administrative Agent with respect to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveNew Entities.
(i) The Administrative Agent UCC financing statements relating to the New Collateral shall have received been duly filed in each office and in each jurisdiction where required in order to create and perfect the results of first priority Lien and security interest set forth in the Collateral Documents (x) searches of the Uniform Commercial Code filings (or equivalent filings) as supplemented and (y) judgment and tax lien searches, made with respect to as such term is defined in the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative AgentAgreement, together with (in the case of clause (y)as amended) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Borrower shall have properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and the Parent Pledge pledged interests in [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies.
(i) Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been duly executed and delivered by each Loan Party that is satisfied with respect to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee RequirementSubject Fund Transactions.
(j) The Administrative Agent shall have received a certificate (i) for its own account all costs and expenses described in Section 6 of this Action, for which invoices have been presented in connection herewith and (ii) for the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as account of the Closing Date.
(k) On the Closing DateGroup Agent of each Committed Lender entitled thereto a fee as set forth below: Bank of America, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsN.A. [***] Credit Suisse AG, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence New York Branch [***] Deutsche Bank AG, New York Branch [***] ING Capital LLC [***] KeyBank National Association [***] National Bank of the Closing Date).
(p) Arizona [intentionally omitted***] Silicon Valley Bank [***] CIT Bank, N.A. [***] Total [***]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Action shall make be effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement The Administrative Agent shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly received counterparts of this Action, executed and delivered by each of the other parties theretohereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(fb) The Administrative Agent shall have received a Committed certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with respect to [***] and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Notice Agreement is true and correct in accordance with all material respects as of the requirements hereof at least one day prior Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the requested date for funding Effective Date (unless such Loanrepresentation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).
(gc) The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from [***] in connection with the Subject Fund Transactions.
(d) Each of the Administrative Agent and each Group Agent shall have receivedreceived an opinion, on behalf dated no earlier than the Effective Date, of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties, the Borrower Subsidiary Parties dated the Closing Date and addressed SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the LendersMajority Group Agents, with respect to the Subject Fund Transactions.
(e) Each of the Administrative Agent and each Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in each case in 3 Required Group Agent Action No. 24 [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. form and substance customary for senior secured credit facilities in transactions of this kindreasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.
(hf) The Administrative Agent and the Collateral Agent shall have received (i) a copy searches of UCC filings in the certificate or articles jurisdiction of incorporation or organizationformation, including all amendments theretoas applicable, of each Loan Party of the New Entities and Project Companythe Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral in respect of the New Entities (the “New Collateral”), certified(ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), if applicable(c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(g) The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], the Collateral Agent and the Borrower, dated as of a recent date by the Secretary of State of the state of its organizationEffective Date, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Effective Date, (Biii) that a Joinder Agreement in the form attached thereto is a true as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***] and complete copy the Collateral Agent, dated as of resolutions duly adopted the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as Administrative Agent with respect to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveNew Entities.
(i) The Administrative Agent UCC financing statements relating to the New Collateral shall have received been duly filed in each office and in each jurisdiction where required in order to create and perfect the results of first priority Lien and security interest set forth in the Collateral Documents (x) searches of the Uniform Commercial Code filings (or equivalent filings) as supplemented and (y) judgment and tax lien searches, made with respect to as such term is defined in the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative AgentAgreement, together with (in the case of clause (y)as amended) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Borrower shall have properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and the Parent Pledge pledged interests in [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies.
(i) Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been duly executed and delivered by each Loan Party that is satisfied with respect to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee RequirementSubject Fund Transactions.
(j) The Administrative Agent shall have received a certificate for its own account all costs and expenses described in the form Section 6 of Exhibit Ithis Action, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall for which invoices have been paid presented in full (or paid concurrently with the occurrence of the Closing Date)connection herewith.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Required Group Agent Action No. 24 (Solarcity Corp)
Conditions Precedent. Each Lender This Third Amendment shall make not become effective until the Loans to be made by it date on the Closing Date subject only to which each of the following conditions precedent, unless otherwise is satisfied (or waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each accordance with Section 12.02 of the parties thereto.Credit Agreement) (the "Effective Date"):
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.1 The Administrative Agent shall have received a Committed Loan Notice from the Administrative Agent, all of the Lenders and each of the Obligors, counterparts (in accordance with such number as may be requested by the requirements hereof at least one day Administrative Agent) of this Third Amendment signed on behalf of such Person.
4.2 The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the requested date hereof, including a borrowing base increase fee to the Administrative Agent for funding such Loanthe account of each Lender in an amount equal to 0.25% of its final allocation of the $75,000,000 increase in the Borrowing Base.
(g) 4.3 The Administrative Agent shall have received, on behalf received counterparts of itselfthe Intercreditor Agreement from each Person party thereto.
4.4 The Administrative Agent shall have received from each party thereto duly executed counterparts (in such number as may be requested by the Administrative Agent) of the Security Instruments described in Exhibit A hereto. In connection with the execution and delivery of such Security Instruments, the Collateral Administrative Agent shall be reasonably satisfied that the Security Instruments create first priority, perfected Liens (subject only to Excepted Liens identified in clauses (a) to (d) and (f) of the definition thereof, but subject to the provisos at the end of such definition) on (a) at least 80% of the total value of the Oil and Gas Properties evaluated in the most recently delivered Reserve Report and the reserve report with respect to the Acquisition Properties and (b) all of the Properties subject to a Lien pursuant to any Subordinated Security Instrument.
4.5 The Administrative Agent shall have received title information as they may reasonably require setting forth the status of title to at least 64% of the total value of the Acquisition Properties.
4.6 The Borrower or one or more Subsidiaries, as applicable, shall purchase one or more commodity price floors or collars or enter into one or more commodity price swaps with one or more Approved Counterparties having a minimum floor strike price, minimum notational amounts and durations reasonably acceptable to the Administrative Agent to hedge the projected production from the Acquisition Properties from commodity price risk. To the extent the Swap Agreements executed in connection with this Section 4.6 are not reasonably acceptable to the Administrative Agent, the Administrative Agent will give written notice to the Borrower and the Lenders, and the Majority Lenders shall have the right to adjust the amount of the Borrowing Base to reflect the incurrence of such Debt utilizing the most recently delivered Reserve Reports.
4.7 The Administrative Agent shall be reasonably satisfied with the environmental condition of the Acquisition Properties.
4.8 The Administrative Agent and the Lenders shall have received Engineering Reports regarding the Acquisition Properties.
4.9 The Administrative Agent shall have received an opinion dated as of the date hereof of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ , LLP, special counsel for to the Loan Parties dated the Closing Date Borrower, in form and addressed substance reasonably satisfactory to the Administrative Agent.
4.10 The Administrative Agent shall have received a certificate of the Borrower and of each Guarantor setting forth the resolutions of the managers, board of directors or other managing body with respect to the Collateral authorization of the Borrower or such Guarantor to execute and deliver the Loan Documents to which it is a party and to enter into the transactions contemplated in those documents.
4.11 The Administrative Agent shall have received a certificate of insurance coverage of the Borrower evidencing that the Borrower is carrying insurance in accordance with Section 7.13 of the Credit Agreement.
4.12 The Administrative Agent shall have received copies of the Subordinated Credit Agreement and the Lenders, in each case all other Subordinated Loan Documents (which shall be in form and substance customary for senior secured credit facilities reasonably satisfactory to the Administrative Agent), together with a certificate of a Responsible Officer that (a) such documents are true and complete copies of the foregoing and (b) that contemporaneously with the effectiveness of the Third Amendment, the loans to be made under the Subordinated Credit Agreement have been funded resulting in transactions gross cash proceeds to the Borrower of this kind$60,000,000.
(h) 4.13 The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (iia) a certificate of a Responsible Officer of the Secretary or Assistant Secretary Borrower certifying: (i) that the Borrower (through its Subsidiaries) is concurrently consummating the Acquisition in accordance with the terms of each Loan Party dated the Closing Date Purchase Agreement (with all of the material conditions precedent thereto having been satisfied in all material respects by the parties thereto) and certifying acquiring substantially all of the Acquisition Properties contemplated thereby; (Aii) as to the final purchase price for the Acquisition Properties after giving effect to all adjustments as of the closing date contemplated by the Purchase Agreement and specifying, by category, the amount of such adjustment; (iii) that attached thereto is a true and complete copy list of all amounts placed in escrow pursuant to the Purchase Agreement and a description of the by-laws or operating affected Properties and the circumstances relating to the placement of such funds in escrow; (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (Biv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance list of the Loan Documents Acquisition Properties which have been excluded from the Acquisition pursuant to which such Person is a party and, in the case terms of the BorrowerPurchase Agreement, specifying with respect thereto the borrowings hereunderbasis of exclusion as (A) title defect, and that such resolutions have not been modified, rescinded (B) preferential purchase right or amended and are in full force and effect, (C) environmental concern; (v) that attached thereto is a true and complete list of all Properties for which any seller has elected to cure a title defect, (vi) that attached thereto is a true and complete list of all Acquisition Properties for which the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant Borrower has elected to clause (i) aboveremediate an adverse environmental condition, and (Dvii) that attached thereto is a true and complete list of all Acquisition Properties which are currently pending final decision by a third party regarding purchase of such property in accordance with any preferential right; (b) a true and complete executed copy of the Purchase Agreement and each other agreement or document relating thereto; (c) original counterparts or copies, certified as true and complete, of the assignments, deeds and leases for all of the Acquisition Properties; and (d) such other related documents and information as the Administrative Agent shall have reasonably requested. The Borrower recognizes and agrees that it shall have delivered to the Administrative Agent a preliminary draft of the certificate described herein not less than three (3) Business Days prior to the date hereof identifying which Acquisition Properties will be excluded from the Acquisition. The Administrative Agent shall allocate a Borrowing Base value for each such excluded Property and shall, promptly upon making such allocation, notify the Borrower and each Lender of such allocation. If the aggregate value as reflected in the applicable Reserve Report of Acquisition Properties excluded under clause (iv) of the preceding paragraph is less than or equal to $4,000,000, the Borrowing Base will not be adjusted. If either the aggregate value as reflected in the applicable Reserve Report for the Acquisition Properties excluded under clause (iv) of the preceding paragraph is greater than $4,000,000 or any Acquisition Properties are excluded for other reasons or any seller in respect thereof makes any adjustment to the purchase price under the Acquisition Documents, then the Administrative Agent shall suggest to the Lenders a Borrowing Base value for each such excluded Property or such Property subject of such adjustment and the Required Lenders shall reach a consensus as to all allocation of value for such Property. Promptly upon the incumbency making by the Required Lenders of such allocation, the Administrative Agent shall notify the Borrower and specimen signature each Lender of each officer executing any Loan Document on behalf such allocation.
4.14 No Default shall have occurred and be continuing as of any Loan Party and countersigned by another officer as the date hereof, after giving effect to the incumbency and specimen signature terms of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovethis Third Amendment.
(i) 4.15 The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that as the Administrative Agent or their special counsel may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementrequire.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Linn Energy, LLC)
Conditions Precedent. Each Lender shall make The effectiveness of the Loans to be made by it on the Closing Date amendments contained in Section 2 hereof is subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionfollowing:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.1 The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf duly executed counterparts of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for this Sixth Amendment from the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Super Majority Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) 4.2 The Administrative Agent shall have received (i) a copy of all fees and other amounts due and payable on or prior to the certificate or articles of incorporation or organizationSixth Amendment Effective Date, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as amendment fee referred to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveSection 4.3 below.
(i) 4.3 The Administrative Agent shall have received an amendment fee for the results of (x) searches benefit of the Uniform Commercial Code filings Lenders executing this Sixth Amendment (a) on or equivalent filingsprior to 5:00 p.m., Dallas, Texas time on February 11, 2015, in an amount for each such Lender equal to 15 basis points (0.15%) and (yb) judgment and tax lien searchesafter 5:00 p.m. Dallas, made with respect Texas time on February 11, 2015 but on or prior to the Loan Parties Sixth Amendment Effective Date, in an amount for each such Lender equal to 10 basis points (0.10%), in each case, of the amount of such Lender’s Applicable Percentage of the Borrowing Base as of the Sixth Amendment Effective Date (after giving effect to Section 3 hereof).
4.4 The Borrower shall have received, during the period between February 1, 2015 and the Sixth Amendment Effective Date, gross cash proceeds in an aggregate amount not less than $250,000,000 from one or more of (a) the Permitted Second Lien Debt, (b) other unsecured Debt permitted under the Credit Agreement or (c) the issuance of Equity Interests in the states or Borrower (other jurisdictions of formation of such Person and with respect to such other locations and names provided to than Disqualified Capital Stock), and, if Permitted Second Lien Debt is incurred on the Administrative AgentSixth Amendment Effective Date, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial a Responsible Officer of Borrowerthe Borrower certifying true, certifying that Borrower accurate and its Subsidiaries, on a consolidated basis, are Solvent as complete copies of the Closing Date.
(k) On the Closing Datematerial Permitted Second Lien Debt Documents, the representations which Permitted Second Lien Debt Documents shall contain terms and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower conditions reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) 4.5 The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating from each party thereto duly executed counterparts (in such number as may be requested by the lien Administrative Agent) of CPF Capital & Tradingthe Second Lien Intercreditor Agreement, LLC shall have been filed in the appropriate filing office in form and substance acceptable satisfactory to the Administrative AgentAgent in its sole discretion.
(s) 4.6 The Administrative Agent Borrower shall have received a duly executed funds flow memorandum publicly announced that its quarterly cash distribution will be no higher than $0.325 per common limited partner unit.
4.7 The conditions set forth in form Section 6.02(a)(i) and substance acceptable to (ii) of the Administrative AgentCredit Agreement shall be satisfied.
Appears in 1 contract
Conditions Precedent. Each Lender shall The obligation of Lenders to make disbursements of the Loans Loan hereunder is subject to be made by it on the Closing Date subject only to satisfaction or waiver of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by There exists no Default, as defined in this Agreement, or Default as defined in any of the Borrower and each Guarantor.other Loan Documents or in the Other Related Documents, or Potential Default; and
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with each of the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have receivedfollowing, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.satisfactory to Administrative Agent:
(h) The Administrative Agent shall have received (i) all Loan Documents, other documents, instruments, policies, and forms of evidence or other materials requested by Administrative Agent under the terms of this Agreement or any of the other Loan Documents;
(ii) either (A) the Mortgage is a copy valid lien upon the Property and is prior and superior to all other liens and encumbrances thereon, except those approved by Administrative Agent in writing, or (B) the Title Company has irrevocably agreed in writing to insure that the Mortgage is a valid lien upon the Property and is prior and superior to all other liens and encumbrances thereon, except those approved by Administrative Agent in writing;
(iii) the Franchise Agreement;
(iv) an environmental site assessment with respect to the presence, if any, of Hazardous Materials on the Property; and
(v) an Appraisal of the Property satisfactory to Administrative Agent in all respects; and
(vi) evidence satisfactory to Administrative Agent that the Adjusted NOI of the Property generated a minimum Adjusted NOI for the twelve month period ended January 31, 2015 of not less than $10,750,000;
(vii) the legal opinion of (A) Polsinelli PC, counsel to Borrower and the other Loan Parties, and (B) each local counsel (if applicable), reasonably satisfactory to Administrative Agent, as special counsel to the Loan Parties, each addressed to Administrative Agent and Lenders;
(viii) the certificate or articles of incorporation or incorporation, articles of organization, including all amendments theretocertificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party and Project Company, certified, if applicable, certified as of a recent date by the Secretary of State of the state of its organization, and formation of such Person;
(ix) a certificate as to the of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified and where relevantfailure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(x) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate with respect to each of the Secretary or Assistant Secretary officers of each such Person authorized to execute and deliver the Loan Party dated the Closing Date and certifying (A) that attached thereto Documents to which such Person is a true party, and complete copy of requests for disbursement from the by-laws FF&E Reserve Account;
(xi) copies certified by the secretary or operating assistant secretary (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing bodyother individual performing similar functions) of each Loan Party authorizing of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which such Person it is a party and, in the case party;
(xii) a Disbursement Instruction Agreement effective as of the BorrowerEffective Date;
(xiii) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xiv) evidence that the Fees, if any, then due and payable under Section 2.4, together with all other fees, expenses and reimbursement amounts due and payable to Administrative Agent and any of the Lenders, including without limitation, the borrowings hereunderreasonable fees and expenses of counsel to Administrative Agent, have been paid;
(xv) insurance certificates, or other evidence, providing that the insurance coverage required under Article V (including, without limitation, both property and that such resolutions have not been modified, rescinded or amended and are liability insurance) is in full force and effect, (C) effect and stating that the certificate coverage shall not be cancelable or articles materially changed without ten (10) days prior written notice to Administrative Agent of incorporation any cancellation for nonpayment or organization premiums, and not less than thirty (30) days prior written notice to Administrative Agent of each any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that Administrative Agent, for its benefit and the benefit of Lenders is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that Borrower or any Loan Party actually maintains with respect to the Property and Project improvements thereon;
(xvi) the Security Documents;
(xvii) a Management Agreement Assignment/Subordination with respect to the Management Agreement;
(xviii) copies of all Material Contracts (to the extent not theretofore delivered) and, if requested by Administrative Agent, collateral assignments executed by Borrower in favor of Administrative Agent for its benefit and the benefit of Lenders, of the Material Contracts relating to the use, occupancy, operation, maintenance, enjoyment or ownership of the Property;
(xix) an ALTA 2006 Form Loan Policy of Title Insurance for the Property (or an irrevocable commitment from the Title Company to issue such a policy) in the aggregate amount of the Loan in favor of Administrative Agent for its benefit and the benefit of Lenders, including endorsements with respect to such items of coverage as Administrative Agent may request and which endorsements are available and customary in the jurisdiction where the Property is located, issued by the Title Company, showing the fee simple and leasehold title to the Property and improvements described in the Mortgage as vested in Borrower and Operating Lessee, respectively, and insuring that the Lien granted by the Mortgage is a valid Lien against the Property, subject only to the Permitted Liens and such other restrictions, encumbrances, easements and reservations as are acceptable to Administrative Agent (the “Title Policy”);
(xx) documents required to establish, or evidencing the establishment of, the FF&E Reserve Accounts; and
(xxi) such other instruments, documents, agreements, financing statements, certificates, opinions and other Security Documents as Administrative Agent may reasonably request.
(c) In the good faith judgment of Administrative Agent:
(i) there shall not have not been amended occurred or become known to Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the last amendment thereto shown on information contained in the certificate of the Secretary of State furnished pursuant to clause (i) abovefinancial and business projections, budgets, pro forma data and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of forecasts concerning any Loan Party delivered to Administrative Agent and countersigned by another officer as Lenders prior to the incumbency and specimen signature of the Secretary date hereof that has had or Assistant Secretary executing the certificate pursuant could reasonably be expected to clause result in a Material Adverse Effect; and
(ii) abovethere shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(id) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established entered into the Interest Reserve AccountDerivative Contract required by Section 8.30 below.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make only become effective upon the Loans to be made by it date (the “Amendment No. 4 Effective Date”) on the Closing Date subject only to which each of the following conditions precedent, unless otherwise waived by precedent shall have been satisfied in a manner reasonably satisfactory to the Lenders in their sole discretionAdministrative Agent:
(a) This Agreement the Administrative Agent shall have been received counterparts of this Amendment, duly authorized, executed and delivered by Holdings, the Borrower Borrowers and each Guarantor.the Lenders;
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed fully executed copy of the Fourth Amendment to Amended and Restated Loan Notice in accordance with and Security Agreement, dated as of the requirements date hereof at least one day prior to (the requested date for funding such Loan.
(g) The Administrative Agent shall have received“ABL Amendment”), on behalf of itselfamong the Loan Parties, the Collateral other borrowers party thereto, the Revolving Loan Agent and the Revolving Loan Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided reasonably satisfactory to the Administrative Agent, together with a certificate of a Responsible Officer of the Borrower Agent certifying that each such document is a true, correct, and complete copy thereof;
(c) the Administrative Agent shall have received counterparts of the side agreement (“Side Agreement”) in the case form of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been Exhibit A hereto, duly executed and delivered by each Loan Party that is to be a party theretoHydrofarm Holdings Group, together with (x) certificates representing Inc., Hydrofarm Investment Corp., Holdings and the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.Borrowers;
(jd) The the Administrative Agent shall have received satisfactory evidence that (i) Hydrofarm Holdings Group, Inc. has made, directly or indirectly, a certificate common cash contribution of $3,000,000, in immediately available funds, to Holdings, (ii) Holdings has applied the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as proceeds of the Closing Date.contribution referred to in clause (i) to make a common cash contribution of $3,000,000, in immediately available funds, to the Borrower Agent, and (iii) the Borrower Agent has applied the proceeds of the contribution referred to in clause (ii) to make a voluntary prepayment of $3,000,000 in principal amount of the Term Loans pursuant to Section 2.1(g)(1) of the Credit Agreement;
(ke) On after giving effect to this Amendment, and the Closing Datetransactions contemplated hereby and thereby, the all representations and warranties made by contained in this Amendment, the Credit Agreement and each of the other Loan Parties in Article V Documents shall be true and correct in all material respects.
respects (lexcept that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) The Lenders shall have received all documentation on and other information required by regulatory authorities with respect as of the Amendment No. 4 Effective Date as if made on the Amendment No. 4 Effective Date, except to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsextent any such representation or warranty is made as of a specified date, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that in which case such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on representation or before the Closing Date warranty shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) as of such date;
(f) after giving effect to this Amendment, the ABL Amendment and the transactions contemplated hereby and thereby, no Default or Event of Default shall exist or have occurred and be continuing as of the Amendment No. 4 Effective Date;
(g) the Loan Parties shall have paid all reasonable costs and expenses of the Administrative Agent and each of the Lenders (including reasonable and documented legal fees and expenses) incurred in full (or paid concurrently connection with the occurrence preparation and execution of this Amendment and incident to all proceedings in connection with, transactions contemplated by, and documents relating to this Amendment and the Closing Date).Loan Documents, which payment shall be nonrefundable;
(ph) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly closing certificate executed funds flow memorandum by a Responsible Officer of the Borrower Agent, certifying in form the name of and substance acceptable to on behalf of the Administrative AgentBorrower Agent that the conditions set forth in this Section 3 have been satisfied.
Appears in 1 contract
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by Upon satisfaction of each of the parties thereto.following conditions, this First Amendment shall be deemed effective (such date, the “First Amendment Effective Date”):
A. Parent, each Borrower, each other Loan Party (dif any), the Administrative Agent, the Required Lenders, each Lender with an outstanding Term Loan (including any new Lender that replaces a Non-Consenting Lender) The Blackstone Consents and the Incremental Term Lender shall have been duly executed signed a counterpart hereof and shall have delivered (including by each way of facsimile or other electronic transmission) the same to the Administrative Agent, c/o White & Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile number: ▇▇▇-▇▇▇-▇▇▇▇ / e-mail address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇) or at such other address as shall be reasonably acceptable to the Administrative Agent;
B. pursuant to Section 2.12(c) of the parties thereto.
(e) The Closing Date Subordination Agreements Credit Agreement, concurrently with the funding of the Designated Incremental Term Loans, the Administrative Agent shall have been duly executed received from the Borrowers for the ratable account of each Lender with outstanding Term Loans (including each Non-Consenting Lender that withholds its consent to this First Amendment and delivered is replaced by each a new Lender) a fee (the “Repricing Fee”) in an amount equal to 1.00% of the parties thereto.aggregate principal amount of all Term Loans of each such Lender (including each such Non-Consenting Lender) outstanding on the First Amendment Effective Date (immediately before the occurrence thereof);
(f) The C. the Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior written legal opinion of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent Parent and the Lenders, an opinion of ▇Borrowers and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPNurick LLC, special Pennsylvania counsel to Parent and the Borrowers, in each case, addressed to the Lenders and the Administrative Agent, dated the First Amendment Effective Date, and in form and substance usual and customary for transactions such as those contemplated hereby;
D. the Loan Parties dated Administrative Agent shall have received a Borrowing Request in respect of the Designated Incremental Term Loans, in substantially the same form delivered on the Closing Date in respect of the Term Loans, and addressed otherwise in form and substance reasonably satisfactory to the Administrative Agent;
E. all fees and expenses required to be paid to the Administrative Agent on the First Amendment Effective Date (including, without limitation, reasonable legal fees and expenses) shall have been paid;
F. the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a solvency certificate from the Chief Financial Officer of the Lead Borrower in substantially in the form of Exhibit F to the Credit Agreement (with appropriate modifications reasonably acceptable to the Administrative Agent), (ii) a certificate of good standing with respect to each Loan Party from the Secretary of State (or other similar official) of the jurisdiction of its organization (to the extent such concept or a similar concept exists under the laws of such jurisdiction) as of a recent date (and a bring-down thereof on the First Amendment Effective Date), (iii) a certificate of the secretary or assistant secretary or other authorized officer of each Loan Party, dated the First Amendment Effective Date, reasonably acceptable to the Administrative Agent, certifying as to the incumbency and specimen signature of each officer of a Loan Party executing this First Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching (x) a true and complete copy of the certificate or articles of incorporation (or organizationother applicable charter document) of each Borrower, including all amendments thereto, of each Loan Party and Project Companyas in effect on the First Amendment Effective Date, certified, if applicable, certified as of a recent date by the Secretary of State (or analogous official) of the state jurisdiction of its organization, and a that has not been amended since the date of the last amendment thereto shown on the certificate as to the of good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and furnished pursuant to clause (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying above, (Ay) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability companyother applicable operating agreements) agreement of each Loan Party and Project Company Borrower as in effect on the Closing First Amendment Effective Date, and (Bz) that attached thereto is a true and complete copy of resolutions duly adopted by the board Board of directors Directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of this First Amendment and the performance of the Credit Agreement (as amended by this First Amendment) and the other Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; provided that in the case of preceding clauses (x) and (y), (C) such documents shall not be required to be delivered if such certificate includes a certification by such officer that the certificate applicable organizational documents delivered to the Administrative Agent in connection with the initial funding of Term Loans on the Closing Date remain in full force and effect and have not been amended, modified, revoked or articles rescinded since the Closing Date;
G. concurrently with the funding of incorporation the Designated Incremental Term Loans, the Borrowers shall have paid to the Administrative Agent for the account of each Lender with outstanding Term Loans on, and immediately prior to, the First Amendment Effective Date all accrued but unpaid interest owing with respect to such Term Loans through the First Amendment Effective Date;
H. no Default or organization Event of Default shall have occurred and be continuing or would occur after giving effect to (x) the incurrence by the Borrowers of the Designated Incremental Term Loans and (y) this First Amendment;
I. all of the representations and warranties of each Loan Party contained in this First Amendment, the Credit Agreement and Project Company have not been amended since in the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause other Loan Documents are true and correct in all material respects (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf without duplication of any Loan Party materiality qualifier contained therein) on and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing First Amendment Effective Date, both immediately before and immediately after giving effect to the First Amendment, as though made on and as of the First Amendment Effective Date (except for representations and warranties made by the Loan Parties that expressly relate to an earlier date, in Article V which case such representations and warranties shall be true and correct in all material respects.respects (without duplication of any materiality qualifier contained therein) as of such earlier date);
J. the First Amendment Effective Date (las defined in the ABL Facility Amendment) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to occurred; and
K. the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum certificate, dated the First Amendment Effective Date and signed by a Responsible Officer of Parent or the Lead Borrower, certifying on behalf of Parent and each Borrower that the conditions in form this Section IV. (H) and substance acceptable to the Administrative Agent(I) have been satisfied.
Appears in 1 contract
Sources: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Conditions Precedent. Each Lender This Amendment shall make not become effective until the Loans to be made by it date (the "AMENDMENT EFFECTIVE DATE") on the Closing Date subject only to which each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionprecedent have been satisfied:
(a) This Agreement shall have been Delivery to the Administrative Agent of this Amendment duly executed and delivered by the Borrower and each Guarantor.the Lenders constituting the Required Lenders;
(b) The Note shall have been duly executed Delivery to the Administrative Agent of the Synthetic Lease Basic Documents in form and delivered by substance satisfactory to the Borrower.Administrative Agent;
(c) Each Collateral Document shall All conditions precedent to effectuate the Synthetic Lease Transaction have been duly executed and delivered by each satisfied (including delivery of the parties thereto.ComEd Synthetic Lease Consent) or waived;
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have receivedopinions, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Amendment Effective Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case from (i) the general counsel to the Loan Parties, (ii) the special New York counsel to the Loan Parties and (iii) Federal Energy Regulatory Commission counsel to the Loan Parties. Each such opinion shall be in form and substance customary for senior secured credit facilities in transactions of this kind.reasonably satisfactory to the Administrative Agent;
(he) The Administrative Agent shall have received (i) a copy representations and warranties of the certificate or articles of incorporation or organization, including all amendments thereto, of Borrower as set forth in the Credit Agreement and each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of set forth in each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person Loan Party is a party andparty, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct as of the Amendment Effective Date after giving effect to the amendments contemplated hereby (unless stated to be given as of an earlier date, in all material respects.which case such representation and warranty shall be true and correct only as of such earlier date); and
(lf) The Lenders As of the Amendment Effective Date, no Default shall have received all documentation occurred and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawbe continuing.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall make The effectiveness of this Amendment is subject to the Loans to be made by it on the Closing Date subject only to satisfaction of all of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with fully executed counterpart of (i) this Amendment, (ii) the requirements hereof at least one day prior Amendment No. 2 to Purchase and Sale Agreement, dated as of the requested date for funding such Loan.
hereof, by and among the Originators (gas defined therein), Olin Finance, as buyer, and Olin, as the servicer, and acknowledged and agreed to by the Group Agents, (iii) The Administrative Agent shall have receivedthe Second Amended and Restated Fee Letter, on behalf dated as of itselfthe date hereof, the Collateral Agent by and the Lendersamong PNC, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to as the Administrative Agent, as a Committed Lender and as a Group Agent, and TD Bank, as a Related Committed Lender and as a Group Agent, and Conduit Lender, and acknowledged and agreed to by the Collateral Borrower and by the Structuring Agent and (iv) the LendersAssumption Agreement, in dated as of the date hereof, by and between TD Bank, as a Related Committed Lender and as a Group Agent, Conduit Lender, and Olin Finance, as Borrower (collectively, the “Amendment Documents”).
(b) Each Group Agent shall have received favorable opinions addressed to each case Group Agent, in form and substance customary for senior secured credit facilities in transactions of this kindsatisfactory to such Group Agents, from counsel to the Borrower, the Servicer and the Performance Guarantor covering certain corporate, enforceability and no conflicts matters as may be reasonably requested by such Group Agents.
(hc) TD Bank, as a Group Agent, shall have received favorable reliance letters addressed to it, in form and substance satisfactory to it, from counsel to the Borrower, the Servicer, the Performance Guarantor and the Originators with respect to each opinion delivered in connection with the closing of the Receivables Financing Agreement on December 20, 2016.
(d) The Administrative Agent shall have received (i) a copy of such documents and certificates as the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (reasonably requested on or equivalent filings) and (y) judgment and tax lien searches, made with respect prior to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to date hereof.
(e) PNC, as the Administrative Agent, together with (as a Committed Lender and as the Group Agent for the PNC Group, TD Bank, as a Related Committed Lender and as the Group Agent for the TD Bank Group, and Conduit Lender, in each case, under the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement Receivables Financing Agreement, as applicable, shall have been duly executed received all fees and delivered by each Loan Party that is other amounts due and payable to it under the Transaction Documents and in connection with the Amendment Documents on or prior to the date hereof, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including reasonable and documented out-of-pocket fees, charges and disbursements of counsel) required to be a party theretopaid or reimbursed on or prior to the date hereof. To the extent such fees and other amounts have not yet been invoiced, together with (x) certificates representing the Pledged Equity of the Borrower and each agrees to remit payment to the applicable party promptly upon receipt of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementsuch invoice.
(jf) The Administrative No Event of Default or Unmatured Event of Default, as set forth in Section 9.01 of the Receivables Financing Agreement, shall have occurred and be continuing.
(g) Each Group Agent shall have received a certificate in fully executed copy of an amendment to the form Limited Liability Company Agreement of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable satisfactory to such Group Agents, conforming the registered agent of the Borrower to the Administrative AgentBorrower’s certificate of formation, and by release of their respective signatures hereto, each Group Agent consents to such amendment.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This First Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (such date, the “First Amendment Effective Date”) when each of the following conditions precedent, unless otherwise is satisfied (or waived by the Lenders in their sole discretion:accordance with Section 12.02):
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.1 The Administrative Agent shall have received a Committed Loan Notice from all of the Lenders and the Obligors counterparts (in accordance with such number as may be requested by the requirements hereof at least one day Administrative Agent) of this First Amendment signed on behalf of such Persons.
4.2 The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the requested date for funding such LoanFirst Amendment Effective Date.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) 4.3 The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial a Responsible Officer of Borrower, the Borrower certifying that the Borrower and its Subsidiaries, on a consolidated basis, are Solvent as is concurrently consummating the Acquisition in accordance with the terms of the Closing Date.
Acquisition Documents (k) On with all of the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct material conditions precedent thereto having been satisfied in all material respectsrespects by the parties thereto) and acquiring at least 85% of all of the Properties contemplated by the Acquisition Documents.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) 4.4 The Administrative Agent shall have received evidence satisfactory to it that a UCC-3 termination statement terminating all Liens on the lien of CPF Capital & Trading, LLC shall Acquisition Properties (other than Excepted Liens) have been filed in the appropriate filing office in form and substance acceptable released or terminated, subject only to the Administrative Agentfiling of applicable termination statements or releases.
(s) 4.5 The Administrative Agent shall have received a title information as the Administrative Agent may reasonably require satisfactory to the Administrative Agent setting forth the status of title to at least 80% of the total value of the Acquisition Properties.
4.6 The Administrative Agent shall have received from the Borrower (i) duly executed funds flow memorandum counterparts (in such number as may be requested by the Administrative Agent) of Security Instruments, in form and substance acceptable satisfactory to the Administrative Agent, creating Liens on the Acquisition Properties in favor of the Administrative Agent, and (ii) such termination statements or releases deemed necessary or advisable by the Administrative Agent to terminate of record any existing Liens on the Acquisition Properties (or an agreement to provide such termination statements or releases from the holders of any such Liens, in form and substance satisfactory to the Administrative Agent).
4.7 Both before and immediately after giving effect to this First Amendment, no Default shall have occurred and be continuing.
4.8 The Administrative Agent shall have received such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this First Amendment to be effective (and the First Amendment Effective Date shall occur) when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted in Section 12.02. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 1 contract
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement For purposes of Section 10.01 of the Credit Agreement, each of the Lenders and the Agent hereby consents and agrees, as of the Effective Date referred to below, to the terms and provisions of this Fourth Amendment subject to the Agent's receipt of (and the effectiveness of this Fourth Amendment shall have been duly executed and delivered be conditioned upon such receipt by the Borrower Agent of) the Subparagraph 4(b) Documents (as defined below) in the manner and each Guarantoron the date specified in subparagraph 4(b) below.
(b) The Note For purposes hereof, the Agent shall have been duly receive on the date of the execution and delivery of this Fourth Amendment by all parties hereto (the "Effective Date") the following documents in form and substance satisfactory to the Agent and the Lenders and other items (collectively, the "Subparagraph 4(b) Documents") either as copies thereof via telecopy with the originals delivered to the Agent promptly after the Effective Date or as originals:
(i) Duly executed and delivered counterpart of this Fourth Amendment signed by the Agent, the Lenders, the Guarantors and the Borrower;
(ii) Duly executed counterparts of all agreements, certificates, affidavits, financing statements and other agreements, instruments and writings set forth on the checklist attached hereto as Exhibit B (the "Checklist"), such items to be in form and substance reasonably satisfactory to Agent and Lenders;
(iii) Unless waived by the Agent and Lenders in writing, all other documents and items set forth in the attached Checklist not included in paragraph 4(b)(ii) above in form and substance reasonably satisfactory to Lenders and Agents;
(iv) (A) a check in the amount of $34,180.00 payable to the order of Thacher Proffitt & Wood on account of the reasonable Agent's legal ▇▇▇▇ an▇ ▇▇sbursement to date incurred in connection with this Fourth Amendment and other matters in connection therewith, (B) a check in the amount of $6,300.00 payable to the order of The Chase Manhattan Bank to reimburse Chase for the reasonable allocated costs of its internal counsel to date incurred in connection with this Fourth Amendment and other matters in connection therewith and (C) a check in the amount of $1,700.00 payable to the order of Finn, Dixon & Herling LLP, on account of Fleet's reasonable legal fee▇ ▇▇ ▇▇te in connection with this Fourth Amendment and other matters in connection therewith.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the LendersIf requested, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organizationwriting, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, Agent shall confirm, in writing, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date satisfactory receipt by Agent of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (iitems set forth in paragraph 4(b) above, and (D) as to the incumbency and specimen signature promptly upon Agent's receipt of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveall such items.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it on the Closing Date subject only to not become effective until each of the following conditions precedent, unless otherwise is satisfied (or waived by the Lenders in their sole discretion:Required Lenders):
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 3.01 The Administrative Agent shall have received a Committed Loan Notice counterparts of this Amendment duly executed by each Credit Party signatory hereto and each other relevant party to this Amendment;
3.02 The representations and warranties contained in accordance with Section 2 hereof (other than those set forth on Annex III hereto) shall be true and correct in all material respects on and as of the requirements hereof at least one day prior date hereof, as though made on such date (except to the requested date for funding extent that such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent representations and the Lenders, warranties relate solely to an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lendersearlier date, in each which case such representations and warranties shall be true and correct in form all material respects on and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent such earlier date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.);
(i) 3.03 The Administrative Agent shall have received the results of Approved Budget (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties as defined in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (Amended Credit Agreement) in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search form and (ii) the Security Agreement and the Parent Pledge Agreement substance attached hereto as Annex II;
3.04 The Administrative Agent shall have been duly executed and delivered by each Loan Party that is to be received Annex IV setting forth a party theretodetailed description of certain litigation, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded actions or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.proceedings;
(j) 3.05 The Administrative Agent shall have received a certificate in for each Credit Party party to the form of Exhibit IAmendment, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.date hereof, duly executed and delivered by an Authorized Officer of such Credit Party party to the Amendment certifying as to:
(ki) On the Closing Dateresolutions of each such Person’s board of managers/directors (or other managing body, in the representations case of a Person that is not a corporation) then in full force and warranties made effect expressly and specifically authorizing, to the extent relevant, all aspects of this Amendment applicable to such Person and the execution, delivery and performance of this Amendment to be executed by the Loan Parties in Article V shall be true and correct in all material respects.such Person;
(lii) The Lenders shall have received all documentation the incumbency and signatures of its Authorized Officers and any other information required by regulatory authorities of its officers, managing member or general partner, as applicable, authorized to act with respect to this Amendment to be executed by such Person;
(iii) certifying that there have been no amendments, modifications or other changes to such Person’s Organization Documents and a certificate of incorporation for the Borrower reasonably requested certified by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsappropriate officer or official body of the State of Delaware; and
(iv) certificates of good standing with respect to each Credit Party, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days each dated within a recent date prior to the Closing Date and are not unduly burdensome on any person unless required date hereof, such certificates to be issued by applicable Law.the appropriate officer or official body of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction;
(m) 3.06 The Lenders Administrative Agent shall have received received, for its own account, the Unaudited Financial Statements.
fees, costs and expenses due and payable to it pursuant to Section 12.05 of the Amended Credit Agreement (nincluding the reasonable fees, disbursements and other charges of one (1) The Borrower shall have established counsel to the Interest Reserve Account.
(oAdministrative Agent and Second Lien Agent) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall for which invoices have been paid in full (or paid concurrently with presented prior to the occurrence of the Closing Date).date hereof;
(p) [intentionally omitted]
(q) 3.07 The Administrative Agent shall have received estoppel letters counterparts of the Amendment No. 6 to Second Lien Credit Agreement duly executed by Yingli Green Energy Americasthe Second Lien Agent, Inc. each Credit Party signatory thereto and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.each other relevant party thereto; and
(r) 3.08 The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating counterparts of the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form Second Amended and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a Restated Fee Letter duly executed funds flow memorandum in form by each Credit Party signatory hereto and substance acceptable each other relevant party to the Administrative Agentthis Amendment.
Appears in 1 contract
Conditions Precedent. Each Lender The effectiveness of this Seventh Amendment is subject to the following:
5.1 Administrative Agent shall make have received counterparts of this Seventh Amendment from the Loans Credit Parties and all of the Banks (including the New Banks and the Exiting Banks).
5.2 Administrative Agent shall have received all fees, including fees received on behalf of, and delivered to, the Banks, due and payable on or prior to be made by it the Seventh Amendment Effective Date pursuant to the Engagement Letter dated as of July 8, 2021 among Borrower, W▇▇▇▇ Fargo Bank, N.A. and W▇▇▇▇ Fargo Securities, LLC.
5.3 Administrative Agent shall have received duly executed Notes payable to each Bank (including each New Bank) requesting a Note (or amendment and restatement thereof, as the case may be) in a principal amount equal to its Maximum Credit Amount (as amended hereby) dated as of the date hereof.
5.4 Contemporaneously with the Seventh Amendment Effective Date, the Borrower shall have issued new Senior Notes under a Senior Indenture in a principal amount not less than $300,000,000.
5.5 Administrative Agent and the Banks shall have received a copy of the preliminary offering memorandum, the final offering memorandum and any other material documents relating to the offering of new Senior Notes on the Closing Date subject only to Seventh Amendment Effective Date.
5.6 Administrative Agent shall have received from each New Bank an Administrative Questionnaire.
5.7 On a pro forma basis, Borrower shall have Revolving Availability plus unrestricted and unencumbered cash and Cash Equivalents in an amount not less than $200,000,000.
5.8 Administrative Agent shall have received each of the following conditions precedentdocuments, instruments and agreements, each of which shall be in form and substance and executed in such counterparts as shall be acceptable to Administrative Agent and each of which shall, unless otherwise waived by indicated, be dated the Lenders in their sole discretionSeventh Amendment Effective Date:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇Akin Gump S▇▇▇▇▇▇ ▇▇▇H▇▇▇▇ & ▇▇▇▇▇F▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date to Borrower, favorably opining as to such New York and addressed to the Texas law-matters as Administrative AgentAgent may request, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.satisfactory to Administrative Agent;
(hb) The Administrative Agent shall have received (i) a copy copies of the certificate or articles of incorporation or organizationcertificate of formation, including and all amendments thereto, of Borrower and each Loan other Credit Party accompanied by a certificate that such copy is true, correct and Project Company, certified, if applicable, as of a recent date complete issued by the Secretary appropriate Governmental Authority of the State of the state of its organization, Delaware and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) accompanied by a certificate of the Secretary or Assistant Secretary comparable Authorized Officer of Borrower and each Loan other Credit Party dated the Closing Date and certifying (A) that attached thereto such copy is a true true, correct and complete copy as of the by-laws or operating Seventh Amendment Effective Date;
(c) copies of the bylaws or limited liability companycompany agreement, and all amendments thereto, of Borrower and each other Credit Party, accompanied by a certificate of the Secretary or comparable Authorized Officer of Borrower and each other Credit Party that each such copy is true, correct and complete as of the Seventh Amendment Effective Date;
(d) agreement certain certificates and other documents issued by the appropriate Governmental Authorities of the states of formation and the other states, as applicable, which may be dated prior to the Seventh Amendment Effective Date, relating to the existence of each Loan Credit Party and Project Company as to the effect that each applicable Credit Party is organized or qualified to do business in effect on such jurisdiction is in good standing with respect to the Closing Datepayment of franchise and similar Taxes and is duly qualified to transact business in such jurisdictions;
(e) a certificate of incumbency of all officers of Borrower and each other Credit Party who will be authorized to execute or attest to any Loan Paper executed by the Secretary or comparable Authorized Officer of Borrower and each other Credit Party; and
(f) copies of resolutions or comparable authorizations and consents approving the Loan Papers and authorizing the transactions contemplated by this Seventh Amendment and the other Loan Papers, duly adopted by the Board of Directors (Bor similar managing body) of Borrower and each other Credit Party, accompanied by certificates of the Secretary or comparable officer of Borrower and each other Credit Party that attached thereto is a such copies are true and complete copy correct copies of resolutions duly adopted at a meeting of or (if permitted by applicable Law and, if required by such Law, by the board Bylaws, or other charter documents of directors Borrower and each other Credit Party) by the unanimous written consent of the Board of Directors (or equivalent governing similar managing body) of Borrower and each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunderother Credit Party, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, rescinded or amended revoked in any respect, and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent effect as of the Closing Seventh Amendment Effective Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it on the Closing Date subject only to effective upon satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been Receipt by the Administrative Agent of:
(i) counterparts of this Amendment duly executed and delivered by the (A) a Responsible Officer of each Borrower and each Guarantor.Guarantor (which term, as used herein, shall include OldCo) and (B) the Lenders and the Administrative Agent;
(bii) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by Notes in favor of each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day Lender that has requested Notes prior to the requested date for funding such Loan.hereof, each duly executed by a Responsible Officer of each Borrower;
(giii) The Administrative Agent shall have received, on behalf favorable opinions of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special legal counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated as of the Lendersdate hereof, in each case and in form and substance customary for senior secured credit facilities in transactions of this kind.satisfactory to the Administrative Agent;
(hiv) The Administrative Agent shall have received (i) a copy copies of the certificate or articles of incorporation or organization, including all amendments thereto, Organization Documents of each Loan Party certified to be true and Project Company, certified, if applicable, complete as of a recent date by the Secretary of State appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a certificate secretary, assistant secretary, other authorized officer or manager of such Loan Party to be true and correct as of the date hereof; provided, that with respect to each Loan Party other than New Coltec and OldCo, to the good standing extent the Organizational Documents of such Loan Party have not changed since the Closing Date (where relevantor the date on which such Loan Party became a Guarantor under the Credit Agreement), the certification by the secretary, assistant secretary, other authorized officer or manager, as applicable, may certify that the applicable Organizational Documents have not changed from the versions provided to the Administrative Agent and the Lenders on the Closing Date (or the date on which such Loan Party became a Guarantor under the Credit Agreement) and remain in full force and effect as of the date hereof in lieu of providing certified copies of such Organizational Documents;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary capacity of each Loan Party dated Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the other Loan Documents to which such Person Loan Party is a party andparty;
(vi) such documents and certifications as the Administrative Agent may require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation;
(vii) searches of Uniform Commercial Code filings in the case jurisdiction of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization formation of each Loan Party or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral and Project Company have not been amended since the date copies of the last amendment thereto shown financing statements on file in such jurisdictions, together with (to the certificate extent requested by the Administrative Agent) searches of ownership of (and Liens on) intellectual property of each Loan Party in the appropriate governmental offices, and evidence that no Liens exist other than Permitted Liens;
(viii) UCC financing statements, naming New Coltec and OldCo as debtors, for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral of New Coltec and OldCo;
(ix) duly executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the intellectual property of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Parties;
(i) The Administrative Agent shall have received the results of (x) searches all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement (including the Equity Interests in New Coltec, as applicable), together with duly executed in blank and undated stock powers attached thereto;
(xi) copies of the Uniform Commercial Code filings (insurance policies or equivalent filings) and (y) judgment and tax lien searches, made with respect to certificates of insurance of the Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the states or other jurisdictions of formation of such Person Loan Documents, including reflecting New Coltec and with respect to such other locations OldCo as covered insureds and names provided to naming the Administrative Agent, together with Agent as additional insured (in the case of clause liability insurance) or Lender’s loss payee (y)in the case of hazard insurance) copies on behalf of the financing statements Lenders; and
(or similar documentsxii) disclosed a certificate signed by such search and a Responsible Officer of each Borrower certifying that (iiA) the Security Agreement conditions specified in Sections 2(b) and the Parent Pledge Agreement shall 2(c) have been duly executed and delivered by each Loan Party that is satisfied, (B) after giving effect to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Datethis Amendment, the representations and warranties made by of the Borrowers and each other Loan Parties Party contained in Article V shall be VI of the Credit Agreement or any other Loan Document, or which are contained in any Compliance Certificate, Pro Forma Compliance Certificate, Loan Notice or Swing Line Loan Notice furnished at any time under or in connection therewith, are true and correct in all material respectsrespects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 2(a)(xii), the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Credit Agreement and (C) no event has occurred and is continuing which constitutes a Default or an Event of Default.
(lb) The Lenders There shall not have received all documentation and other information required by regulatory authorities with respect occurred since December 31, 2015 any event or circumstance that has had or would be reasonably expected to have, either individually or in the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsaggregate, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawa Material Adverse Effect.
(mc) The Lenders There shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Parent, threatened in any court or before an arbitrator or Governmental Authority that would reasonably be expected to have received the Unaudited Financial Statementsa Material Adverse Effect.
(nd) The Borrower shall have established Receipt by the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 Administrative Agent, the Arrangers and the BAML Engagement Letter Lenders of any fees required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date)date hereof.
(pe) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed Unless waived by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The , the Borrowers shall have paid all reasonable costs and expenses of the Administrative Agent shall have received evidence that a UCC-3 termination statement terminating (including reasonable and documented fees and expenses of its legal counsel) in connection with this Amendment to the lien of CPF Capital & Trading, LLC shall have been filed in extent invoiced prior to or on the appropriate filing office in form and substance acceptable date hereof (paid directly to such counsel if requested by the Administrative Agent.
(s) The ), without prejudice to a final settling of accounts between the Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative AgentBorrowers.
Appears in 1 contract
Conditions Precedent. Each Lender This Agreement shall make the Loans to be made by it on the Closing Date subject only to effective upon satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This receipt by the Administrative Agent of counterparts of this Agreement shall have been duly executed and delivered by the Borrower Loan Parties, the Lenders and each Guarantor.the Administrative Agent;
(b) The Note shall have been receipt by the Administrative Agent of counterparts of (i) the amended and restated fee letter duly executed and delivered by the Borrower.Borrowers and the Administrative Agent, (ii) the Term A-1 Notes duly executed by the Borrowers, (iii) the Term A-2 Notes duly executed by the Borrowers and (iv) the 2018 Israeli Debenture duly executed by the Parent and the Administrative Agent;
(c) Each Collateral Document shall have been duly executed and delivered receipt by each the Administrative Agent of (i) the Third Amendment STA, (ii) the Conversion Side Letter, (iii) that that certain voting undertaking dated as of August 13, 2018 made by certain holders of preferred shares of the parties thereto.Parent to the Parent (the “Voting Undertaking”) and (iv) a certificate signed by a Responsible Officer of the Parent attaching executed copies of each document necessary to effectuate the Third Amendment STA, the Conversion Side Letter, the Voting Undertaking and the transactions contemplated thereby, in each case in form and substance satisfactory to the Administrative Agent;
(d) The Blackstone Consents the Lenders shall have been duly executed and delivered by each closed on the purchase of the parties Purchased Shares (as defined in the Third Amendment STA) of the Parent from the Sellers (as defined in the Third Amendment STA), as contemplated by the Third Amendment STA and the other documents and agreements related thereto.;
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered receipt by the Administrative Agent of the following, each of which shall be originals or pdf scans or facsimiles (in each case followed promptly by originals), in form and substance reasonably satisfactory to the parties thereto.Administrative Agent and its legal counsel:
(fi) The (A) copies of the Organization Documents of each Loan Party (except for the Parent and Venus Canada) certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party (or other Responsible Officer of such Loan Party) to be true and correct as of the Third Amendment Effective Date and (B) copies of the Articles of Association of the Parent and Organization Documents of Venus Canada, in each case, certified to be true and complete as of the Third Amendment Effective Date by a Responsible Officer of the Parent;
(ii) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent shall have received may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Committed Loan Notice Responsible Officer in accordance connection with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itselfthis Agreement, the Collateral Agent Third Amendment STA, the Conversion Side Letter and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPDebenture and (B) without limiting the generality of the foregoing, special (I) copies of resolutions of the Board of Directors of the Parent and, if applicable, any other Israeli Guarantor, as are required to comply with applicable law and the Organization Documents of the Parent or such other Israeli Guarantor, as the case may be, (II) to the extent applicable, copies of the resolutions of any committee of the Board of Directions of each Israeli Guarantor and (Ill) if any transaction contemplated by any Investment Document involving an Israeli Guarantor qualifies as a transaction with an Interested Party (bawl inyan) (as that term is defined in the Israeli Companies Law), resolutions and approvals of the requisite shareholders of such Israeli Guarantor, the board of directors of such Israeli Guarantor and any other required organ of such Israeli Guarantor approving each Investment Document to which such Israeli Guarantor is a party and the performance of such Israeli Guarantor’s obligations thereunder, such approval in accordance with the Israeli Companies Law, Part VI, Chapter 5; and
(iii) such documents and certifications as the Administrative Agent may require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state or other jurisdiction of organization or formation;
(f) receipt by the Administrative Agent of favorable opinions of legal counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated as of the LendersThird Amendment Effective Date, and in form and substance reasonably satisfactory to the Administrative Agent;
(g) receipt by the Administrative Agent of the quarterly financial statements required by Section 7.01(b) of the Existing Credit Agreement and an accompanying Compliance Certificate that satisfies the requirements of Section 7.02(α) of the Amended Credit Agreement, in each case for the fiscal quarter ending June 30, 2018;
(h) receipt by the Administrative Agent of (i) evidence in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The reasonably satisfactory to the Administrative Agent shall have received (i) a copy of the certificate or articles calculation (in reasonable detail) of incorporation or organizationConsolidated Revenues for the four consecutive fiscal quarter period ending December 31, including all amendments thereto, of each Loan Party 2017 both before and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as after giving effect to the good standing (where relevant) change in revenue reporting practices of each Loan Party and Project Company treating subscription arrangements as of a recent date, from such Secretary of State or similar Governmental Authority capital leases under GAAP and (ii) a certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer of each of the Secretary or Assistant Secretary of each Loan Party dated Borrowers certifying the Closing Date and certifying calculation (Ain reasonable detail) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance amount of the Loan Documents to which such Person is a party and, in the case Available Funding Amount as of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Third Amendment Effective Date;
(i) The receipt by the Administrative Agent shall have received of all Third Amendment Cash Pay Interest;
(j) receipt by the results Administrative Agent of (xi) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made a Loan Notice with respect to the Loan Parties in Term A-2 Borrowing to be made on the states or other jurisdictions Third Amendment Effective Date and (ii) a reasonably satisfactory letter of formation of such Person and direction containing funds flow information with respect to such other locations and names provided the proceeds of the Loans to be made on the Third Amendment Effective Date; and
(k) receipt by ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, counsel to the Administrative Agent, together with (in of all its fees and expenses unpaid to date and owing pursuant to the case of clause (y)) copies terms of the financing statements (or similar documents) disclosed by such search and (ii) Investment Documents; provided, that, after the Security Agreement and the Parent Pledge Agreement Borrowers shall have been duly executed paid the first $100,000 of such fees and delivered by each Loan Party expenses plus any VAT, the Borrowers shall only be required to pay fifty percent (50%) of any such fees and expenses that is to be a party thereto, together with are in excess of such first $100,000 2M VAT (xit being understood and agreed that info event shall anything in this Section 3(k) certificates representing derogate from or diminish the Pledged Equity obligations of the Borrower Loan Parties to pay fees and each expenses of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect Affiliates to the Borrower reasonably requested by extent incurred after the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Third Amendment Effective Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall make 3.01 The effectiveness of this Amendment is subject to the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedentprecedent in a manner satisfactory to Administrative Agent, unless otherwise specifically waived in writing by the Lenders in their sole discretionAdministrative Agent:
(a) This Agreement Administrative Agent shall have been received this Amendment duly executed by B▇▇▇▇▇▇▇, each Lender party hereto, the Collateral Custodian and delivered by the Borrower and each GuarantorCollateral Administrator.
(b) The Note Administrative Agent shall have been received that certain A▇▇▇▇▇▇ and Restated Fee Letter, dated as of the Second Amendment Effective Date, duly executed and delivered by the BorrowerB▇▇▇▇▇▇▇.
(c) Each Collateral Document Administrative Agent shall have been duly executed received legal opinion or opinions of Dechert LLP, counsel to the Borrower, covering (i) authority, (ii) enforceability of this Amendment and delivered by each of the parties theretoother Transaction Documents executed herewith, and (iii) perfection, in each case, in form and substance acceptable to the Administrative Agent in its reasonable discretion.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice secretary’s certificate of B▇▇▇▇▇▇▇ (i) that includes a copy of the resolutions, in accordance with the requirements hereof at least one day prior form and substance reasonably satisfactory to the requested Administrative Agent, of the board of directors, manager(s) or member(s) of Borrower, authorizing (A) the execution, delivery and performance of this Amendment and the other Transaction Documents to which it is a party, and (B) the borrowings contemplated thereunder, and a certification that such resolutions have not been amended, modified, revoked or rescinded, (ii) that includes a copy of the Governing Documents of Borrower and a certification that, except as disclosed therein, there has not been any amendment, modification or supplement to such Governing Documents, (iii) that includes a certification as to the incumbency and signature of the officers of Borrower executing any Transaction Document and (iv) that includes certificates dated as of a recent date for funding from the Secretary of State or other appropriate authority, evidencing the good standing of Borrower (A) in the jurisdiction of its organization and (B) in each other jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires it to qualify as a foreign Person except, as to this clause (B), where the failure to so qualify could not be reasonably expected to have a Material Adverse Effect, which certificate shall be in form and substance satisfactory to the Administrative Agent and shall be executed by a corporate secretary or Responsible Officer of B▇▇▇▇▇▇▇. [KFIT] Second Amendment to Loan and Security Agreement
(e) The Borrower and the Collateral Manager shall each have delivered to the Administrative Agent a certificate as to whether such Loanentity is Solvent substantially in the form of Exhibit C to the Agreement.
(f) The Borrower and the Collateral Manager shall each have delivered to the Administrative Agent a closing certificate substantially in the form of Exhibit D to the Agreement.
(g) The Administrative Agent shall have received, on behalf received the results of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed a recent search by a Person satisfactory to the Administrative Agent, of the Collateral Agent UCC, judgment and tax lien filings which may have been filed with respect to personal property of each FS/KKR Party, and bankruptcy and pending lawsuits with respect to each FS/KKR Party and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions results of this kindsuch search shall be satisfactory to the Administrative Agent.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document fees on behalf of any Loan Party itself and countersigned by another officer the Lenders due and payable as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovedate hereof.
(i) The Administrative Agent shall have received the results of (x) searches representations and warranties of the Uniform Commercial Code filings (or equivalent filings) Borrower contained herein and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party theretoother Transaction Documents, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit Ias amended hereby, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects (except for such representations and warranties as are qualified by materiality, a Material Adverse Effect or any similar qualifier, which representations and warranties shall be true in all respects.
(l) The Lenders shall have received all documentation on and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence as of the Closing Datedate hereof, as if made on the date hereof (other than any representation and warranty that is made as of another specific date which were true, correct, and complete in all material respects as of such date).
(pj) [intentionally omitted]No Default or Event of Default shall have occurred and be continuing.
(qk) The Administrative Agent All organizational proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect be satisfactory to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This First Amendment shall make not become effective until the Loans to be made by it date (the “First Amendment Effective Date”) on the Closing Date subject only to which each of the following conditions precedentis satisfied (or waived in accordance with Section 10.02 of the Credit Agreement) (and for the avoidance of doubt, unless otherwise waived by the Lenders parties understand that Section 5.4 of this First Amendment applies to the conditions set forth in their sole discretion:this Section 4):
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice certificate of an Authorized Officer of the Parent certifying: (i) that the ▇▇▇▇▇▇▇ Acquisition will be consummated concurrently with the effectiveness of this First Amendment and substantially in accordance with the terms of the ▇▇▇▇▇▇▇ Acquisition Documents (with all of the material conditions precedent thereto having been satisfied in all material respects by the parties thereto) and in all material respects in accordance with all applicable Governmental Requirements and (ii) that attached thereto are true and complete executed copies of the ▇▇▇▇▇▇▇ Acquisition Documents.
(b) The Administrative Agent shall have received (i) a certificate of a Responsible Officer of the Parent satisfying the requirements hereof at least one day of clause (k) of the definition of Permitted Acquisition with respect to both the ▇▇▇▇▇▇▇ Acquisition and the Port ▇▇▇▇▇▇ Acquisition and (ii) the calculations required by clause (e)(iv) of the definition of Permitted Acquisition. With respect to the ▇▇▇▇▇▇▇ Acquisition, the Administrative Agent and the Lenders, as applicable, shall be satisfied with all other documentation required to be delivered to it and the Lenders pursuant to the definition of “Permitted Acquisition”.
(c) The Administrative Agent shall have received from the Lenders required by the Credit Agreement, the Issuing Banks, the Parent, the Borrower and each Guarantor, executed counterparts (in such number as may be requested by the Administrative Agent) of this First Amendment and all schedules, exhibits and annexes to the foregoing.
(d) The Administrative Agent shall have received (a) duly executed counterparts (in such number as may be requested by the Administrative Agent) of an assumption agreement to the Guarantee and Collateral Agreement (the “Assumption Agreement”) executed by each Additional Guarantor substantially in the form of Annex I to the Guarantee and Collateral Agreement and (b) the certificate or certificates, if any, representing the Equity Interests pledged pursuant to the Guarantee and Collateral Agreement and such Assumption Agreement, together with an undated stock power or equivalent for each such certificate executed in blank by a Responsible Officer of the pledgor thereof.
(e) The Administrative Agent shall have received a completed Perfection Certificate in respect of each Borrower Party, dated the First Amendment Effective Date and executed by a Responsible Officer of the Parent, together with all attachments contemplated thereby, including (i) certified copies of UCC, Tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Additional Guarantor as debtor or list any Subject Assets or Port ▇▇▇▇▇▇ Assets as collateral thereon (except that such requirements shall not apply to assets that are, taken as a whole, immaterial to the Borrower’s Business, subject to compliance with Section 6.02, or to assets of First Amendment Unrestricted Subsidiaries) and that are filed in the state and county jurisdiction in which any Additional Guarantor is organized, maintains its principal place of business or in which Additional Guarantor owns property or in which any Subject Assets or Port ▇▇▇▇▇▇ Assets are located (except that such requirements shall not apply to assets that are, taken as a whole, immaterial to the Borrower’s Business, subject to compliance with Section 6.02, or to assets of First Amendment Unrestricted Subsidiaries) and such other searches that the Administrative Agent deems necessary or appropriate, (ii) substantially all UCC termination statements (or similar documents) duly authorized or executed, as appropriate, by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective Mortgages or UCC financing statements (or equivalent filings) disclosed in such search, including with respect to any Liens on any Subject Assets or Port ▇▇▇▇▇▇ Assets or the property of any Additional Guarantor (except that such requirements shall not apply to assets that are, taken as a whole, immaterial to the Borrower’s Business, subject to compliance with Section 6.02, or to assets of First Amendment Unrestricted Subsidiaries) and (iii) such other information with respect to the Borrower Parties required pursuant to Section 5.10(a) of the Credit Agreement.
(f) The Administrative Agent, the Arrangers and the Lenders shall have received all fees and other amounts due and payable on or prior to the requested date for funding such LoanFirst Amendment Effective Date (including the Committed Amount Increase Fee), including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received, on behalf of itself, received a favorable written opinion (addressed to the Collateral Administrative Agent and the Lenders, an opinion Lenders and dated the First Amendment Effective Date) of (i) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ & LLP, counsel for the Borrower Parties, International Holdco and South America Holdco, substantially in the form of Exhibit A, and covering such other matters relating to the Borrower Parties, International Holdco, South America Holdco, the Credit Agreement, the First Amendment, or the other Loan Documents being executed in connection therewith as the Required Lenders shall reasonably request, (ii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ LLP& West pllc, special counsel for to Genesis Pipeline Alabama, LLC, in form and substance reasonably satisfactory to the Loan Parties dated Administrative Agent and (iii) the Closing Persons described in clause (a)(iii) of the definition of “First Amendment Effective Date Real Property Requirements” with respect to Real Property acquired in the ▇▇▇▇▇▇▇ Acquisition or the Port ▇▇▇▇▇▇ Acquisition, which opinions shall also cover matters relating to Additional Guarantors organized in the applicable jurisdiction, all in form and addressed substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received the following, in each case in form and substance satisfactory to the Arrangers and their counsel: (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, copies of each Loan Party Organizational Document of each Additional Guarantor and Project CompanyFirst Amendment Unrestricted Subsidiary, certifiedand, if to the extent applicable, certified as of a recent date by the Secretary of State of appropriate governmental official, each dated the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of First Amendment Effective Date or a recent datedate prior thereto, from such Secretary of State or similar Governmental Authority and (ii) a certificate signature and incumbency certificates of the Secretary or Assistant Secretary officers of each Additional Guarantor executing any Loan Document on behalf of such Borrower Party dated or the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing DateGeneral Partner, (Biii) that attached thereto is a true and complete copy resolutions of resolutions duly adopted by the board of directors (or equivalent similar governing body) body of each Loan Borrower Party or the General Partner or such Borrower Party’s general partner approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which such Person is becoming a party and, in the case or by which its assets may be bound as of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded First Amendment Effective Date certified by its secretary or amended and are any assistant secretary as being in full force and effect, effect without modification or amendment; (Civ) that a good standing certificate from the certificate or articles of incorporation or organization applicable Governmental Authority of each Loan Party Additional Guarantor’s jurisdiction of organization or formation and Project Company have not been amended since in each jurisdiction in which such Additional Guarantor is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, First Amendment Effective Date; and (Dv) such other documents as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveAdministrative Agent may reasonably request.
(i) The Administrative Agent shall have received the results of (x) searches organizational structure of the Uniform Commercial Code filings (or equivalent filings) Parent and (y) judgment the Subsidiaries, both before and tax lien searches, made with respect after giving effect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided ▇▇▇▇▇▇▇ Acquisition, shall be reasonably satisfactory to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit Icertificate, dated the Closing First Amendment Effective Date and signed by the Chief President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 and certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent compliance with Section 3.17 as of the Closing DateFirst Amendment Effective Date after giving effect to the Loans used to fund the ▇▇▇▇▇▇▇ Acquisition and the other transactions contemplated by this First Amendment.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters reasonable satisfactory evidence that (i) all Indebtedness for borrowed money owing by any Acquired Company has been paid in full and all commitments and obligations thereunder shall have been terminated and (ii) no other Additional Guarantor has any Indebtedness for borrowed money outstanding.
(l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower either (i) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by and the validity against each Borrower Party of this First Amendment and the Loan Documents being executed in connection therewith and to which it is a party and such consents, licenses and approvals shall be in full force and effect, or (ii) stating that no such consents, licenses or approvals are so required.
(m) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower either (i) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by and the validity against each Borrower Party of the ▇▇▇▇▇▇▇ Acquisition Documents and such consents, licenses and approvals shall be in full force and effect, or (ii) stating that no such consents, licenses or approvals are so required.
(n) The Administrative Agent shall have received a letter duly executed and delivered by Yingli Green Energy Americasthe Process Agent dated on or prior to the First Amendment Effective Date pursuant to which it accepts its appointment as Process Agent for the Additional Guarantors (and any other Borrower Party not previously covered by such a letter) under the Credit Agreement and the other Loan Documents, Inc. which letter may be an addendum to the letter previously delivered on the Effective Date.
(o) All other Subject Assets, or assets of an Additional Guarantor, or Port ▇▇▇▇▇▇ Assets in which the Administrative Agent shall, at such time, be entitled to have a Lien in its favor for the benefit of the Secured Parties pursuant to any Loan Document shall have been physically delivered to the possession of the Administrative Agent or any bailee accepted by the Administrative Agent to the extent that such possession is necessary or desirable for the purpose of perfecting the Administrative Agent’s Lien in such Collateral for the benefit of the Secured Parties.
(p) In respect of the ▇▇▇▇▇▇▇ Acquisition, the Arrangers shall have received and Canadian Solar shall be satisfied with the financial statements, projections and calculations referred to in clauses (USAd), Inc. (e)(i) and (e)(iv) of the definition of Permitted Acquisition.
(q) In respect of the ▇▇▇▇▇▇▇ Acquisition, the Administrative Agent (and, with respect to their clause (i), if requested by a Lender, each such Lender) shall have received and be reasonably satisfied with (i) all existing liens against reports and similar documents of the Borrower Parent, the Subsidiaries, the Acquired Companies and the Subject Assets relating to environmental matters, other than such documents that are either (A) immaterial or (B) solely ministerial and ordinary course in form nature and substance acceptable to (ii) any additional such reports that may have been reasonably requested by the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien and be reasonably satisfied with copies of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable all Material Agreements related to the Administrative Agent▇▇▇▇▇▇▇ Acquisition or the Subject Assets that are in effect on the First Amendment Effective Date.
(s) Subject to Section 2.18(b) of this First Amendment, the Parent and the Subsidiaries shall have complied with the First Amendment Effective Date Real Property Requirements with respect to the Subject Assets or the Port ▇▇▇▇▇▇ Assets that are Real Property to the satisfaction of the Administrative Agent; provided, that this condition shall not apply to Real Property of the First Amendment Unrestricted Subsidiaries.
(t) The Parent and the Subsidiaries shall have paid or made arrangements to pay all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents to be executed in connection with this First Amendment.
(u) The Administrative Agent shall have received a duly executed funds flow memorandum and delivered Borrowing Request in form compliance with Section 2.03 of the Credit Agreement.
(v) The Administrative Agent shall have received a duly executed and substance delivered Borrowing Base Multiple Increase Notice in compliance with Section 2.04 of the Credit Agreement.
(w) The Administrative Agent shall have received a duly executed and delivered Borrowing Base Certification in compliance with Section 5.01(g) of the Credit Agreement.
(x) The Administrative Agent shall have received such other documents as the Administrative Agent or special counsel to the Administrative Agent may reasonably request. The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of any Issuing Bank to issue Letters of Credit in connection with this First Amendment, and this First Amendment in its entirety, shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.02 of the Credit Agreement) at or prior to 3:00 p.m., New York City time, on July 25, 2007. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this First Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent, the Arrangers, the Issuing Banks or the Lenders unless the Administrative Agent shall have received notice from such Lender prior to the proposed First Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Genesis Energy Lp)
Conditions Precedent. Each Lender shall make This Amendment will not become effective until the Loans to be made by it date on the Closing Date subject only to which each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionis satisfied:
(a) This Agreement The Borrower shall have been duly executed and delivered to the Administrative Agent the Promissory Notes attached hereto as Exhibit A (the “Amendment Notes”). These Amendment Notes are issued in substitution for and replacement of, but not repayment of (i) those certain Promissory Notes, dated as of December 20, 2013, issued by the Borrower in favor of the Lenders in connection with the Third Amendment. The Amendment Notes shall constitute a “Note” as defined and each Guarantordescribed in the Credit Agreement. From and after the date hereof, all references in the Credit Agreement and in all other Loan Documents to the “Notes” shall be deemed to be references to the Amendment Notes.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with counterparts of this Amendment from the requirements hereof at least one day Borrower and each of the Lenders.
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the requested effective date for funding of this Amendment.
(d) The Administrative Agent shall have received title information satisfactory to it on at least 80% (by NPV) of the total Proved Reserves attributable to the Oil and Gas Properties evaluated in such LoanReserve Report, with such 80% first being satisfied from Proved Developed Producing Reserves, next from Proved Developed Nonproducing Reserves and thereafter from Proved Undeveloped Reserves.
(e) The Administrative Agent shall have received information and evidence satisfactory to it that the Mortgaged Properties represent at least 80% (by NPV) of the Oil and Gas Properties evaluated in the most recently completed Reserve Report, with such 80% first being satisfied from Proved Developed Producing, next from Proved Developed Nonproducing Reserves and thereafter from Proved Undeveloped Reserves.
(f) No Default or Event of Default shall have occurred that is continuing.
(g) The Administrative Agent shall have received, on behalf of itself, received such other documents as the Collateral Administrative Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special or counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) may reasonably request. The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of notify the Borrower and each the Lenders of the Closing Pledged Companies accompanied by undated stock powers executed in blank effectiveness of this Amendment, and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V such notice shall be true conclusive and correct in all material respectsbinding.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (such date, the “Third Amendment Effective Date”) when each of the following conditions precedentis satisfied (or waived in accordance with Section 12.1 of the Credit Agreement):
4.1 The Administrative Agent, unless otherwise waived the Lead Arrangers and the Lenders shall have received all fees and other amounts due and payable in connection with this Amendment and the documents entered into connection herewith or any other Credit Document on or prior to the Third Amendment Effective Date, and reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Lenders in their sole discretion:
Company pursuant to this Amendment or any other Credit Document (a) This Agreement shall have been duly executed including the out of pocket expenses of counsel to the Administrative Agent and delivered by the Borrower and each Guarantorits Affiliates).
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.2 The Administrative Agent shall have received a Committed Loan Notice in accordance with counterpart of this Amendment signed by the requirements Company, the Parent, each Guarantor, each Lender and each Issuing Lender (which, subject to Section 5.4 hereof at least one day prior to and Section 12.8(b) of the requested date for funding such LoanCredit Agreement, may include any Electronic Signatures transmitted by telecopy, pdf or similar electronic transmission).
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) 4.3 The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial from a Responsible Officer of Borrower, the Company certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties set forth in Article V shall be Section 5.2(d) hereof are true and correct in all material respectscorrect.
(l) 4.4 The Administrative Agent and the Lenders shall have received all a Borrowing Base Certificate (along with customary supporting documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationssupplemental reporting) demonstrating a Borrowing Base of no less than $600,000,000 as of December 31, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law2022.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) 4.5 The Administrative Agent shall have received a duly secretary’s certificate executed funds flow memorandum and delivered by a Responsible Officer or secretary of the Parent, certifying as to each of the Credit Parties’ (A) officers’ incumbency appended thereto, (B) resolutions of the board of directors of each Credit Party approving the execution, delivery and performance of this Amendment (including making the Temporary Revolving Credit Commitments permanent) appended thereto and (C) true and complete copies of Organization Documents, with the applicable insertions and attachments being satisfactory in form and substance acceptable to the Administrative Agent.
4.6 The Administrative Agent shall have received a favorable opinion of counsel for the Credit Parties dated the Third Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance and from counsel reasonably satisfactory to the Administrative Agent. The Administrative Agent is hereby authorized and directed to declare this Amendment to be effective (and the Third Amendment Effective Date shall occur) when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 4 (or the waiver of such conditions as permitted in Section 12.1 of the Credit Agreement). Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 1 contract
Conditions Precedent. Each Lender The effectiveness of this Amendment is subject to (i) the truth and accuracy of the representations set forth in Section 3 below and (ii) the Administrative Agent’s receipt of each of the following, each of which shall make the Loans to be made by it on the Closing Date subject only in form and substance satisfactory to the following Administrative Agent (the first date on which each of the conditions precedentpursuant to the foregoing clauses (i) and (ii) shall have been satisfied, unless otherwise waived by the Lenders in their sole discretion:“Fourth Amendment Effective Date”):
(a) This Agreement shall have been a counterpart of this Amendment duly executed and delivered by the Borrower Borrower, the Administrative Agent and each Guarantor.the Requisite Lenders;
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, as counsel to the Borrower and the other Loan Parties, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special Maryland counsel for to the Loan Parties dated the Closing Date and Borrower, in each case addressed to the Administrative Agent, the Collateral Agent and the LendersLenders and covering such matters as the Administrative Agent may reasonably request;
(c) the side letter agreement, in each case dated as of the Fourth Amendment Effective Date, in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided satisfactory to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Agent and the Parent Pledge Agreement shall have been Requisite Lenders (the “Side Letter”), duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy and the Collateral and Guarantee Requirement.Borrower;
(jd) The evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as any of the Closing Date.Lenders in connection with this Amendment have been paid;
(ke) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under Administrative Agent and each Lender in order to comply with applicable “know your customer” and antiAnti-money laundering rules Money Laundering Laws and regulations, including without limitation limitation, the USA PATRIOT Patriot Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered , in each case, at least 10 days five (5) Business Days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.Fourth Amendment Effective Date; and
(mf) The Lenders shall have received such other documents, agreements, instruments, certificates or other confirmations as the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agentmay reasonably request.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective when all of the Loans to be made by it on following conditions, the Closing Date subject only satisfaction of each of which is a condition precedent to the following conditions precedenteffectiveness of this Amendment, unless otherwise waived by the Lenders in their sole discretionshall have occurred:
(a) This Agreement The Agent shall have been duly received a fully executed and delivered by the Borrower and each Guarantorcounterpart or original of this Amendment.
(b) The Note Agent shall have been duly executed and delivered by received from the Borrower.Companies, for the account of the Lenders (other than CIT), a non-refundable closing fee in the amount of $40,000, which fee shall be fully earned when paid. The Companies hereby authorize the Agent to charge the Collective Loan Account with the amount of such fee;
(c) Each Collateral Document The Agent shall have been duly executed and delivered by each received from the Companies, for the account of the parties thereto.Agent, a non-refundable consent and syndication fee in the amount of $10,000, which fee shall be fully earned when paid. The Companies hereby authorize the Agent to charge the Collective Loan Account with the amount of such fee;
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have receivedan original Assignment and Transfer Agreement, on behalf of itselfexecuted by CIT, the Collateral Agent as assignor, and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPTrust Company, special counsel for as assignee (the Loan Parties dated "Assignee"), and accepted by each of the Closing Date and addressed Companies, pursuant to which CIT has assigned to the Administrative AgentAssignee forty percent (40)% of CIT's interest, the Collateral Agent and the Lendersas Lender, in each case in form all of the outstanding Revolving Loans and substance customary for senior secured credit facilities in transactions of this kind.Acquisition Term Loans (the "Assignment");
(he) The Administrative Agent CIT, as Lender, shall have received (i) a copy of $[________] in immediately available funds from the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by Assignee in consideration for the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Assignment;
(if) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in of the form Secretary of Exhibit Ieach Company, dated certifying: (i) that attached thereto are true and correct copies of the Closing Date articles of incorporation and signed by laws of such Company; (ii) the names, incumbency and signatures of the officer(s) of such Company authorized to sign this Amendment; (iii) the names of such Company's board of directors; and (iv) that attached thereto are true and correct copies of resolutions duly adopted by such Company's board of directors authorizing such Company to enter into this Amendment;
(g) The Agent shall have received a good standing certificate for each Company, issued by the Chief Financial Officer state of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as incorporation of the Closing Date.such Company;
(kh) On the Closing Date, the All representations and warranties made by the Loan Parties set forth in Article V Section Two above shall be true and correct in all material respects.respects on and as of the effective date hereof, and no Default or Event of Default shall have occurred and be continuing;
(li) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly certificate from each Company, executed funds flow memorandum by its chief executive officer, certifying (i) as to the truth and accuracy of paragraph (h) of this Section Three and (ii) that such Company is in compliance with all of the terms and provisions set forth in the Financing Agreement, as amended hereby;
(j) the Agent shall have received a Trademark Security Agreement, in form and substance acceptable satisfactory to the Administrative Agent, duly executed by the Companies, pursuant to which the Companies grant to the Agent a first-priority security interest in all of the Companies' trademarks, trademark applications and related goodwill;
(k) The Agent shall have received payment of all fees, expenses and disbursements (including, without limitation, the fees and expenses of external counsel) incurred by the Agent in connection with the preparation, negotiation and execution of this Amendment and the transactions contemplated to occur hereunder.
Appears in 1 contract
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by become effective on the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by date the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by Administrative Agent has confirmed the satisfaction or waiver of each of the parties thereto.
conditions contained in this Section 2 (d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing “Effective Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.”):
(i) The Administrative Agent shall have received the results counterparts of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security this Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each (1) the Loan Party that is to be a party theretoParties, together with (x2) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank Administrative Agent, and (yiii) documents and instruments the Incremental Revolving Loan Lender;
(ii) The Borrower shall have paid to be recorded or filed that the Administrative Agent may deem reasonably necessary all expenses payable pursuant to satisfy Section 9.03 of the Collateral and Guarantee Requirement.Credit Agreement which have accrued to the Effective Date to the extent invoices therefor have been provided at least one Business Day prior to the Effective Date;
(jiii) The Administrative Agent shall have received the executed legal opinion of Fenwick & West LLP, counsel for the Borrower, in form and substance reasonably satisfactory to Administrative Agent (but in any event limited to a certificate in customary enforceability opinion);
(iv) The Administrative Agent shall have received (1) certified copies of the form resolutions of Exhibit Ithe board of directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and all documents evidencing other necessary organizational action and governmental approvals, dated the Closing Date if any, with respect to this Agreement and signed (2) all other documents reasonably requested by the Chief Financial Officer Administrative Agent relating to the organization, existence and good standing of Borrower, certifying that the Borrower and its Subsidiaries, on a consolidated basis, are Solvent as the authorization of the Closing Date.transactions contemplated hereby;
(kv) On the Closing Date, the The representations and warranties made by of the Borrower set forth in the Loan Parties in Article V Documents (including, without limitation, this Agreement) shall be true and correct in all material respects on and as of the Effective Date except that (1) the representations and warranties contained in Section 3.04(a) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) (subject, in the case of unaudited financial statements furnished pursuant to clause (b), to year-end audit adjustments and the absence of footnotes), respectively, of Section 5.01 of the Credit Agreement, (2) to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date and (3) to the extent that such representations and warranties are already qualified or modified by materiality or words of similar effect in the text thereof, they shall be true and correct in all respects.;
(lvi) As of the Effective Date, no Default or Event of Default shall have occurred and be continuing or will result from the execution of this Agreement and the transactions contemplated hereby as of the Effective Date;
(vii) The Lenders Administrative Agent shall have received (1) a certificate, dated the Effective Date and signed on behalf of the Borrower by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (v), (vi) and (x) of this Section 2(a) as of the Effective Date, and (2) a solvency certificate, dated the Effective Date and signed on behalf of the Borrower by the most senior financial officer of the Borrower, certifying that, as of the Effective Date, the Borrower and the Restricted Subsidiaries, taken as a whole, are, and after giving effect to the incurrence of any Indebtedness and obligations being incurred in connection herewith will be, Solvent;
(viii) The Incremental Revolving Loan Lender shall have received, to the extent reasonably requested at least five Business Days prior to the Effective Date, all documentation and other information required by bank regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Patriot Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.;
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(six) The Administrative Agent shall have received a duly executed funds flow memorandum in form Borrowing Request (it being agreed by the Administrative Agent and substance acceptable the Incremental Revolving Loan Lender that this Agreement shall serve as such Borrowing Request); and
(x) As of the Effective Date, both before and immediately after giving effect to the Administrative AgentIncremental Revolving Loan Commitment, the Borrower and its Restricted Subsidiaries shall have Liquidity of not less than $300,000,000.
(b) The obligation of the Incremental Revolving Loan Lender to make a Loan on the occasion of any Borrowing after the Effective Date is subject to the satisfaction of the conditions set forth in Section 4.02 of the Credit Agreement.
Appears in 1 contract
Sources: Joinder Agreement (Snap Inc)
Conditions Precedent. Each This Amendment, and the obligation of each Incremental Lender to increase its Revolving B Commitment and/or make its portion of the Term B-6 Loan to the Company, as applicable, under this Amendment and the Amended Credit Agreement, shall make the Loans to be made by it on the Closing Date subject only to effective upon satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been Receipt by the Administrative Agent of counterparts of this Amendment duly executed by (i) a Responsible Officer of the Company, the Parent, the Designated Borrowers, the Additional Borrower, and delivered by the Borrower other Guarantors, (ii) each Incremental Lender, (iii) the Foreign Swing Line Lender, and each Guarantor(iv) the Administrative Agent.
(b) The Note shall have been duly executed and delivered Receipt by the Administrative Agent of (i) Revolving Notes, executed by a Responsible Officer of each Revolving A/B Borrower, in favor of each Incremental Revolving B Lender requesting a Revolving Note from the Revolving A/Borrowers and (ii) Term Notes, executed by a Responsible Officer of the Company, in favor of each Term B-6 Lender requesting a Term Note from the Company.
(c) Each Collateral Document shall have been duly executed and delivered Receipt by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior of favorable opinions of legal counsel to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and (other than Lux 2), addressed to the Administrative Agent, each Lender, and each Foreign Swing Line Lender, and dated as of the Collateral Agent and the LendersEffective Date, in each case in form and substance customary for senior secured credit facilities in transactions of this kindsatisfactory to the Administrative Agent.
(hd) The Receipt by the Administrative Agent shall have received of a certificate of each Loan Party, in each case, duly executed by a Responsible Officer of each such Loan Party, dated as of the Effective Date, (i) a copy certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the this Amendment and the transactions contemplated hereby (including the incurrence of the certificate or articles Incremental Facilities), (ii) certifying and attaching copies of incorporation or organizationthe Organization Documents of such Loan Party, including all amendments thereto, of each Loan Party certified to be true and Project Company, certified, if applicable, complete as of a recent date by the Secretary of State appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, and a certificate where applicable (or, as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from any such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) Organization Documents that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modifiedamended, rescinded modified or amended terminated since previously certified to the Administrative Agent, certifying that such Organization Documents have not been amended, modified or terminated since such date and are remain in full force and effect, and true and complete, in the form previously delivered to the Administrative Agent on such date), and (Ciii) certifying as to the incumbency, identity, authority and capacity of each Responsible Officer of such Loan Party authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party.
(e) Receipt by the Administrative Agent of such documents and certifications as the Administrative Agent may require to evidence that the certificate or articles of incorporation or organization of each Loan Party is duly organized or formed, and Project Company have not been amended since is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization or formation (in each case, to the date extent applicable in such jurisdiction). 14327516v3
(f) Receipt by the Administrative Agent of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause following: (i) above, and (D) as to searches of Uniform Commercial Code filings in the incumbency and specimen signature jurisdiction of formation of each officer executing any Loan Document on behalf of any U.S. Loan Party and countersigned each other jurisdiction reasonably required by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause Administrative Agent, disclosing no Liens other than Permitted Liens; (ii) abovesearches of ownership of, and Liens on, United States registered intellectual property of each U.S. Loan Party in the appropriate governmental offices, disclosing no Liens other than Permitted Liens; and (iii) duly executed notices of grant of security interest in substantially the form required by the Security Agreement as are necessary, in the Administrative Agent’s discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property of the U.S. Loan Parties.
(g) All boards of directors, governmental, shareholder and material third party consents and approvals necessary in connection with this Amendment and the transactions contemplated hereby (including the incurrence of the Incremental Facilities) shall have been obtained.
(h) There shall not have occurred since December 31, 2024 any event or circumstance that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(i) The Receipt by the Administrative Agent shall have received the results of (x) searches a certificate, dated as of the Uniform Commercial Code filings (or equivalent filingsEffective Date, signed by a Responsible Officer of the Company certifying as to the satisfaction of the conditions set forth in Sections 4(g) and (yh) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (ySection 5(c)(iv)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Receipt by the Administrative Agent of (i) a Pro Forma Compliance Certificate, duly executed by a Responsible Officer of the Parent, demonstrating that, upon giving effect to the institution of the Incremental Facilities on a Pro Forma Basis, the Loan Parties are in compliance with the financial covenants set forth in Section 8.11 of the Existing Credit Agreement as of the end of the most recent fiscal quarter for which the Company was required to deliver financial statements pursuant to Section 7.01(a) or (b) of the Existing Credit Agreement (it being understood and agreed that for purposes of calculating the Consolidated Leverage Ratio under this Section 4(j) the identifiable proceeds of the Term B-6 Loan and any Revolving Loans advanced on the Effective Date shall have received not qualify as Unrestricted Cash for the purposes of clause (a)(ii) of the definition of Consolidated Leverage Ratio in Section 1.01 of the Existing Credit Agreement) and (ii) a certificate in the form of Exhibit Icertificate, dated as of the Closing Date and Effective Date, signed by the Chief Financial Parent’s chief financial officer (or other financial officer of the Parent that is a Responsible Officer of Borrowerand is reasonably acceptable to the Administrative Agent) certifying that, certifying that Borrower after giving effect to this Amendment and any borrowings and other transactions to occur on the Effective Date, the Parent and its Subsidiaries, Subsidiaries on a consolidated basis, basis are Solvent as of the Closing DateSolvent.
(k) On the Closing Date, the representations and warranties made Receipt by the Administrative Agent of Loan Parties Notices with respect to the Term B-6 Loan and any Revolving Loans to be advanced on the Effective Date in Article V shall be true and correct in all material respectsaccordance with the requirements of the Amended Credit Agreement.
(l) The Lenders shall have received Receipt by the Administrative Agent, each Incremental Lender of all documentation and other information that it has reasonably requested in writing that it has reasonably determined is required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.. 14327516v3
(m) The Lenders shall have received To the Unaudited Financial Statementsextent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, receipt by the Administrative Agent and each Incremental Lender, to the extent requested by the Administrative Agent or such Incremental Lender, of a Beneficial Ownership Certification in relation to such Borrower.
(n) The Borrower shall have established Receipt by Bank of America (or any of its designated Affiliates) of any fees owing to Bank of America (or any of its designated Affiliates), the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 Arrangers, the Administrative Agent, and the BAML Engagement Letter Incremental Lenders that are required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Effective Date).
(po) [intentionally omitted]
Unless waived by the Administrative Agent, payment by the Company of all fees, charges and disbursements of counsel to the Administrative Agent (qdirectly to such counsel, if so requested by the Administrative Agent) The to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided, that, such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). For purposes of determining compliance with the conditions specified in this Section 4, each of the Incremental Lenders and the Foreign Swing Line Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to an Incremental Lender or the Foreign Swing Line Lender unless the Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americasnotice from such Incremental Lender of the Foreign Swing Line Lender, Inc. and Canadian Solar (USA)as applicable, Inc. with respect to their existing liens against the Borrower in form and substance acceptable prior to the Administrative AgentEffective Date specifying its objections.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Corpay, Inc.)
Conditions Precedent. Each Lender This Action shall make be effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement The Administrative Agent shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly received counterparts of this Action, executed and delivered by each of the other parties theretohereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(fb) The Administrative Agent shall have received a Committed certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with respect to [***] and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Notice Agreement is true and correct in accordance with all material respects as of the requirements hereof at least one day prior Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the requested date for funding Effective Date (unless such Loanrepresentation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).
(gc) The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from each of [***] and [***] in connection with the Subject Fund Transactions.
(d) Each of the Administrative Agent and each Group Agent shall have receivedreceived an opinion, on behalf dated no earlier than the Effective Date, of itself, the Collateral Agent and the Lenders, an opinion of W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties, the Borrower Subsidiary Parties dated the Closing Date and addressed SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the LendersMajority Group Agents, in with respect to the Subject Fund Transactions.
(e) Each of the Administrative Agent and each case Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in form and substance customary for senior secured credit facilities in transactions of this kindreasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.
(hf) The Administrative Agent and the Collateral Agent shall have received (i) a copy searches of UCC filings in the certificate or articles jurisdiction of incorporation or organizationformation, including all amendments theretoas applicable, of each Loan Party of the New Entities and Project Companythe Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral in respect of the New Entities (the “New Collateral”), certified(ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), if applicable(c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(g) The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], the Collateral Agent and the Borrower, dated as of a recent date by the Secretary of State of the state of its organizationEffective Date, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Effective Date, (Biii) that a Joinder Agreement in the form attached thereto is a true as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***] and complete copy the Collateral Agent, dated as of resolutions duly adopted the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as Administrative Agent with respect to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveNew Entities.
(i) The Administrative Agent UCC financing statements relating to the New Collateral shall have received been duly filed in each office and in each jurisdiction where required in order to create and perfect the results of first priority Lien and security interest set forth in the Collateral Documents (x) searches of the Uniform Commercial Code filings (or equivalent filings) as supplemented and (y) judgment and tax lien searches, made with respect to as such term is defined in the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative AgentAgreement, together with (in the case of clause (y)as amended) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Borrower shall have properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and the Parent Pledge pledged interests in the [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies.
(i) Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been duly executed and delivered by each Loan Party that is satisfied with respect to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee RequirementSubject Fund Transactions.
(j) The Administrative Agent shall have received a certificate for its own account all costs and expenses described in the form Section 6 of Exhibit Ithis Action, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall for which invoices have been paid presented in full (or paid concurrently with the occurrence of the Closing Date)connection herewith.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only Notwithstanding any term or provision of this Agreement to the following conditions precedentcontrary, unless otherwise waived by the Lenders in their sole discretionParagraphs 2, 3, 4, 5 and 6 hereof shall not become effective until:
(a) This Agreement the Agent shall have been received counterparts of this Agreement, duly executed and delivered by on behalf of the Borrower Borrowers, the Agent and each Guarantor.the Required Lenders;
(b) The Note the Agent shall have been duly executed and delivered by received evidence that the Borrower.Borrowers have at least $17,500,000 of Availability on the date of the Agreement (after giving effect to the Transaction);
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Borrowers, in form and substance satisfactory to the Agent and its counsel;
(d) the Agent shall have received evidence that the Borrowers are in compliance with Section 6.03 of the Credit Agreement with respect to the assets and locations acquired pursuant to the Transaction;
(e) the Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each filing, registration or recordation (including, without limitation, UCC-1 Financing Statements) required by law or requested by the Agent to be filed, registered or recorded in order to create in favor of the Agent for its own benefit and for the benefit of the Lenders a first priority perfected security interest in the Collateral acquired in connection with the Transaction;
(f) with respect to any Liens on the assets being acquired pursuant to the Transaction which are not permitted by Section 7.01 of the Credit Agreement, the Agent shall have received evidence, in form and substance satisfactory to it, of the termination of all such Liens;
(g) the Agent shall have copies of all real estate lease agreements assumed by Millbrook in connection with the Transaction, together with appropriate landlord or warehousemen waivers with respect thereto in form and substance satisfactory to the Agent;
(h) the Agent shall have received Borrowing Base certificates (i) dated as of February 29, 2000 (reflecting the ▇▇ & ▇. ▇▇▇▇▇▇▇ LLP& Sons, special counsel for Inc. acquisition), and (ii) dated as of the Loan Parties dated date hereof (reflecting the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the LendersTransaction), in each case to be substantially in the form of Schedule 6.05(g) to the Credit Agreement and otherwise in form and substance customary for senior secured credit facilities in transactions of this kind.satisfactory to the Agent;
(hi) The Administrative the Agent shall have (i) received a certified copy of the Asset Purchase Agreement, including all amendments and schedules thereto, as well as all agreements, document and instruments executed and delivered in connection therewith (including opinions of legal counsel), (ii) received evidence that the Asset Purchase Agreement is in full force and effect and all consents, filings and approvals required by applicable law in connection therewith shall have been obtained and made, (iii) determined that the terms and provisions of all agreements and documents in connection with the Transaction, including, without limitation, the Asset Purchase Agreement, are satisfactory in form and substance and shall have determined to its satisfaction that the consummation of the Transaction and other transactions contemplated by the Asset Purchase Agreement are in compliance with all applicable laws and regulations and (iv) received evidence satisfactory to it that no Default or Event of Default would occur as a result of the Transaction;
(j) the Borrowers shall have paid a fee equal to $15,000 to each Lender signing this Agreement; and
(k) the Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation or the USA PATRIOT Act; provided that Agent or the Lenders Agent's counsel shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawreasonably deem necessary.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Rab Holdings Inc)
Conditions Precedent. Each Lender Concurrently with the execution and delivery hereof, and as a further condition to the effectiveness of this Amendment No. 10 and the agreement of Agent to the modifications and amendments set forth in this Amendment No. 10:
5.1 Agent shall make have received an executed copy of an original or executed original counterparts of this Amendment No. 10 by electronic mail or facsimile (with the Loans originals to be made by it on delivered within five (5) Business Days after the Closing Date subject only to the following conditions precedentdate hereof), unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly authorized, executed and delivered by each Borrower and Guarantor; and
5.2 each Borrower and Guarantor shall deliver, or cause to be delivered, to Agent a true and correct copy of the parties thereto.any consent, waiver or approval to or of this Amendment No. 10, which any Borrower or Guarantor is required to obtain from any other Person, and such consent, approval or waiver shall be in a form and substance satisfactory to Agent in its good faith determination;
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative 5.3 Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior approvals of all Lenders required to consent to the requested amendments to the Loan Agreement and the other Financing Agreements, set forth in this Amendment No. 10;
5.4 Agent shall have received projections of the monthly balance sheets, income statements, statements of cash flows and availability of the BlueLinx and its Subsidiaries for the period through the fiscal year ending December 31, 2016, with assumptions and otherwise in form and substance reasonably satisfactory to Agent;
5.5 as of the date for funding such Loan.hereof, Excess Availability shall be not less than $60,000,000;
(g) The Administrative 5.6 Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance satisfactory to Agent, a Borrowing Base Certificate consistent with Agent’s customary for senior secured credit facilities in transactions procedures and practices so as to obtain current results as of this kind.the date hereof;
(h) The Administrative 5.7 Agent shall have received (i) a copy of payment, or shall be authorized to charge the certificate or articles of incorporation or organization, including all amendments theretoBorrowers' Loan Account for payment, of each Loan Party all fees set forth in any fee letter between Agent and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made Borrowers with respect to the Loan Parties in the states or other jurisdictions transactions contemplated by this Amendment No. 10;
5.8 all of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by set forth in the Loan Parties in Article V Agreement and the other Financing Agreements, each as amended by this Amendment No. 10, shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation respects on and other information required by regulatory authorities with respect as of the date hereof, as if made on the date hereof, except to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsextent any such representation or warranty is made as of a specified date, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that in which case such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on representation or before the Closing Date warranty shall have been paid true and correct in full (or paid concurrently with the occurrence all material respects as of the Closing Date).such date; and
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable 5.9 after giving effect to the Administrative Agentamendment contemplated by this Amendment No. 10, no Default or Event of Default shall exist or have occurred and be continuing.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (BlueLinx Holdings Inc.)
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Save and except as expressly provided in this Agreement or unless the context otherwise requires the respective rights and obligations of the Parties under this Agreement shall have been duly executed and delivered by be subject to the Borrower and each Guarantorsatisfaction in full of the Conditions Precedent specified in this Article.
(b) The Note Conditions Precedent required to be satisfied by the Developer during the Pre-Development Period shall be deemed to have been fulfilled when the Developer shall have:
(i) provided Performance Security to the Client in accordance with Article 8; and
(ii) delivered to the Client 3 (three) true copies of the Financial Package and the Financial Model, duly executed attested by a authorized officer of the Developer, along with 1 (one) soft copy of the Financial Model; and
(iii) prepared and delivered by submitted to the BorrowerClient for approval, in accordance with Article 10, and for attachment to this Agreement as Schedules, the amendment to the Master Plan, Construction and Development Plan, Drawings, Standards and Specifications, Project Completion Schedule and Plot Transfer Plan.
(c) Each Collateral Document The Conditions Precedent required to be satisfied by the Client during the Pre-Development Period shall be deemed to have been duly fulfilled when the Client shall have:
(i) executed and delivered by each the Development Agreement; and
(ii) procured for the Developer the Right of Way to the parties thereto.Project Site in accordance with the provisions of Article 9
(d) The Blackstone Consents shall have been duly executed and delivered Developer may, upon fulfilling Conditions Precedents specified in Article 5.1(b), at any time after 30 (thirty) days from the date of this Agreement or on an earlier day acceptable to the Client, by each notice require the Client to satisfy any or all of the parties theretoConditions Precedent specified in Article 5.1(c) within a period of (45) forty five days of the notice, or such longer period not exceeding 60 (sixty) days as may be specified therein.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each Each Party may upon receipt of a written request may, in its discretion, waive any of the parties theretoConditions Precedent required to be fulfilled by the other Party as specified in this Article. For the avoidance of doubt, the Party granting the waiver may, in its sole discretion, grant any waiver hereunder with such conditions as it may deem fit.
(f) The Administrative Agent Each Party shall have received a Committed Loan Notice make all reasonable endeavours to satisfy the Conditions Precedent within the time stipulated and shall provide the other Party with such reasonable cooperation as may be required to assist that Party in accordance with satisfying the requirements hereof at least one day prior to the requested date Conditions Precedent for funding such Loanwhich that Party is responsible.
(g) The Administrative Agent Parties shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, notify each other in each case writing at least once in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect two weeks on the Closing Date, (B) that attached thereto progress made in satisfying the Conditions Precedent. Each Party shall promptly inform the other Party when any Condition Precedent for which it is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not responsible has been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovesatisfied.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Development Agreement
Conditions Precedent. Each Lender This Amendment No. 9 shall make be effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement Agent shall have been received counterparts of this Amendment No. 9, duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly authorized, executed and delivered by each of Borrower, each Guarantor and the parties thereto.Required Lenders;
(db) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organizationsatisfactory to Agent, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to from the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated (i) attesting to the Closing Date and certifying (A) that attached thereto is a true and complete copy resolutions of the by-laws or operating (or limited liability company) agreement such Loan Party’s Board of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party Directors authorizing the its execution, delivery delivery, and performance of this Amendment No. 9 and the Loan other Amendment Documents to which such Person Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effectparty, (Cii) that the certificate or articles authorizing specific officers of incorporation or organization of each such Loan Party and Project Company have not been amended since to execute the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) abovesame, and (Diii) as attesting to the incumbency and specimen signature signatures of such specific officers of such Loan Party;
(c) Agent shall have received, in form and substance satisfactory to Agent, a certificate of status with respect to each Loan Party, dated within twenty (20) days of the date hereof (or such earlier date as Agent may agree), such certificate to be issued by the appropriate officer executing any of the jurisdiction of organization of such Loan Document on behalf of any Party, which certificate shall indicate that such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.is in good standing in such jurisdiction;
(id) The Administrative Agent shall have received in immediately available funds (or Agent shall have charged the results loan account of (xBorrower) searches the full amount of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect amendment fee referred to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.Section 3 hereof;
(je) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.internal Flood Disaster Prevention Act approval; and
(kf) On after giving effect to the Closing Dateprovisions of this Amendment No. 9, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders no Default or Event of Default shall have received all documentation occurred and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawbe continuing.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall make The obligation of the Loans Collateral Agent to be made by it on release funds in any Disbursement Account to the Closing Date Borrower in accordance with Section 2.10(c) is subject only to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:: [OppLoans SPV] Second A&R Credit Agreement #514109284
(ai) This Agreement each Credit Document shall be in full force and effect, shall include terms and provisions reasonably satisfactory to the Administrative Agent (provided that the terms and provisions set forth in the Credit Documents as of the Second Restatement Date shall be deemed satisfactory to the Administrative Agent) and no provision thereof shall have been duly executed and delivered amended, restated, supplemented, modified or waived in any respect determined by the Borrower and Administrative Agent to be material, in each Guarantorcase, without the consent of the Administrative Agent.
(bii) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance fully executed Funds Release Request together with the requirements hereof at least one day a Borrowing Base Certificate no later than 12:00 p.m. two (2) Business Days prior to the date on which Borrower proposes to use the requested date for funding such Loan.
funds to purchase additional Eligible Receivables (g) The Administrative Agent shall have receivedthe "Release Date"), on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made evidencing sufficient Facility Availability with respect to the Loan Parties requested funds together with an updated schedule of Receivables including the Receivables to be purchased on the Release Date, such schedule to (A) be in an electronic file format reasonably satisfactory to the states or other jurisdictions of formation of such Person Administrative Agent and (B) set forth the information required to be provided under the Backup Servicing Agreement (including, without limitation, and with respect to such other locations and names provided to each Contract, (1) the Administrative Agentaccount number; (2) Obligor name, together with (in 3) the case of clause (y)) copies outstanding principal balance of the financing statements (or similar documents) disclosed Receivable evidenced by such search Contract), (4) the Remaining Funded Amount of such Receivable and (ii5) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered any other information reasonably requested by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary with respect to satisfy the Collateral and Guarantee Requirement.such Release Date;
(jiii) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing such Release Date, the representations and warranties made by the Loan applicable Credit Parties contained herein and in Article V the other Credit Documents to which it is a party shall be true and correct in all material respects (except for such representations and warranties already qualified by materiality which shall be true and correct in all respects.) on and as of that Release Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for such representations and warranties already qualified by materiality which shall be true and correct in all respects) on and as of such earlier date;
(liv) The Lenders as of such Release Date, after giving effect to the requested release of funds from the applicable Disbursement Account, no event shall have occurred and be continuing or would result from such release of funds from such Disbursement Account to the Borrower that would constitute an Event of Default or a Default;
(v) as of such Release Date, the Collateral Agent shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.a fully executed Assignment;
(mvi) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable approved all material changes made to the Administrative Agent.Credit Policies and the Servicing Policy in accordance with the terms set forth herein;
(rvii) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating if any Receivables originated by an Additional Bank Partner Originator are to be pledged in connection with the lien of CPF Capital & Tradingrelease made on such Release Date, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly fully executed funds flow memorandum copy of the related Additional Bank Partner Originator Program Agreements and the Additional Bank Partner Originator Call Letter;
(viii) in form accordance with the terms of the Backup Servicing Agreement, the Borrower shall have delivered, or caused to be delivered, to the Backup Servicer, imaged copies of the Verified Documents and substance the related Receivables Report, and (to the [OppLoans SPV] Second A&R Credit Agreement #514109284 extent required pursuant to the Backup Servicing Agreement) the Administrative Agent shall have received a Verification Report and the Verified Receivables Report from the Backup Servicer, which Verification Report and Verified Receivables Report is acceptable to the Administrative Agent in its sole discretion;
(ix) no Closing Date Material Adverse Change shall have occurred;
(x) no Tier 2 Collateral Performance Trigger shall have occurred and be continuing;
(xi) [Reserved];
(xii) immediately after the release of the requested funds to Borrower and the purchase by the Borrower of additional Eligible Receivables on such Release Date, no Borrowing Base Deficiency shall exist; and
(xiii) none of the Receivables to be sold to the Borrower on such Release Date and reflected on the Borrowing Base Certificate delivered pursuant to clause (ii) above were originated in any state or jurisdiction with respect to which any Governmental Authority has instituted any inquiry, investigation, action or proceeding against any Credit Party, any Originator, any Bank Partner Originator or any sub-servicer relating to such Person's authority to originate, hold, own, service, pledge or enforce any Receivable with respect to the residents of such state. Any Agent shall be entitled, but not obligated, to request and receive, prior to the release of any funds from any Disbursement Account to the Borrower, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent, such request is warranted under the circumstances.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionconditions:
(a) This Agreement shall have been Receipt by the Administrative Agent of counterparts of this Amendment duly executed and delivered by the Borrower Borrowers, the Guarantors, the Administrative Agent, the Required Lenders, the Voting Participants and each Guarantor.Lender with a Term Loan S Commitment;
(b) The Note shall have been duly executed and delivered Receipt by the Borrower.Administrative Agent of the following:
(ci) Each Collateral Document a certificate of each Loan Party dated as of the Eighth Amendment Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Term Loan S, as well as such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization and (B) certifying that, before and after giving effect to the Term Loan S, (x) the representations and warranties contained in Article V of the Amended Term Loan Agreement and the other Loan Documents are true and correct as of such date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.01 of the Amended Term Loan Agreement shall have been duly be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Amended Term Loan Agreement, and (y) no Default exists;
(ii) a Note executed and delivered by each of the parties thereto.Borrowers in favor of each Lender requesting a Note for the Term Loan S; and
(diii) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(eA) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an legal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Corporate Secretary of the Borrowers and Guarantors, and (B) a legal opinion of ▇▇▇▇▇▇▇ Coie LLP, special counsel to the Borrowers, in each case dated as of the Eighth Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) The payment by the Borrowers of all fees and expenses due and payable as of the Eighth Amendment Effective Date, including the reasonable out-of-pocket costs and expenses of the Administrative Agent and the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇ LLP▇▇▇▇, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall The effectiveness of this Amendment and the Amended Credit Agreement, and the obligation of the Term A Lenders to make the Term A Loans pursuant to Section 2.01(b) of the Amended Credit Agreement, shall be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionconditions:
(a) This Agreement The Administrative Agent’s receipt of the following, each of which shall have been duly be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed and delivered by a Responsible Officer of the Borrower signing Loan Party, each dated the Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date) and each Guarantor.
(b) The Note shall have been duly executed in form and delivered by substance satisfactory to the Borrower.
(c) Each Collateral Document shall have been duly executed Administrative Agent and delivered by each of the parties thereto.Lenders:
(di) The Blackstone Consents shall have been duly executed and delivered counterparts of this Amendment;
(ii) Notes executed by each Borrower in favor of the parties thereto.each Lender requesting Notes;
(eiii) The Closing Date Subordination Agreements shall have been duly executed such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and delivered by capacity of each of Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the parties thereto.other Loan Documents to which such Loan Party is a party;
(fiv) The such documents and certifications as the Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior may reasonably require (but only to the requested date for funding extent such Loan.concepts exist under applicable law) to evidence that each Loan Party is duly organized, incorporated or formed, and that each Borrower and Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(gv) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion favorable opinions of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent, ▇▇▇▇▇▇ and Calder, special Cayman Islands counsel to the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇▇, special Luxembourg counsel for to the Loan Parties dated the Closing Date Parties, in form and addressed substance reasonably acceptable to the Administrative Agent, and of ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special Nevada counsel to the Collateral Agent and the LendersLoan Parties, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.reasonably acceptable to the Administrative Agent, each addressed to the Administrative Agent and each Lender;
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (iivi) a certificate of the Secretary or Assistant Secretary a Responsible Officer of each Loan Party dated the Closing Date and certifying Holdings either (A) that attached thereto is a true attaching copies of all consents, licenses and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as approvals required in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which such Person it is a party and, in the case of the Borrower, the borrowings hereunderparty, and that such resolutions have not been modifiedconsents, rescinded or amended licenses and are approvals shall be in full force and effect, or (CB) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Holdings certifying (A) that the certificate conditions specified in Sections 4.02(a) and (b) of the Amended Credit Agreement have been satisfied (other than any such conditions as are subject to the judgment or articles discretion of incorporation the Administrative Agent or organization of each Loan Party and Project Company have not any Lender), (B) that there has been amended no event or circumstance since the date of the last amendment thereto shown on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the certificate aggregate, a Material Adverse Effect and (C) a calculation of the Secretary Consolidated Total Leverage Ratio as of State furnished pursuant to clause (i) above, and (D) as the last day of the fiscal quarter of the Company most recently ended prior to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall Restatement Effective Date for which financial statements have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided been delivered to the Administrative Agent, together with (in giving pro forma effect to the case of clause (y)) copies making of the financing statements Term A Loans on the Restatement Effective Date; and
(or similar documentsviii) disclosed by such search evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect.
(b) No event having a Material Adverse Effect shall have occurred since December 31, 2011.
(c) The representations and warranties of (i) the Borrowers contained in Article V of the Amended Credit Agreement and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party theretocontained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respectsrespects on and as of the proposed Restatement Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(ld) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter Any fees required to be paid on or before the Closing Restatement Effective Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Company shall have paid in full all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or paid concurrently with on the occurrence Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Dateclosing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(p) [intentionally omitted]
(qf) The Restatement Effective Date shall have occurred on or before August 31, 2012. Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable notice from such Lender prior to the Administrative Agentproposed Restatement Effective Date specifying its objection thereto.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Conditions Precedent. Each Lender This Fourteenth Amendment shall make the Loans not be deemed to be made by it effective until the date on the Closing Date subject only to which each of the following conditions precedent, unless otherwise is satisfied (or waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each accordance with Section 12.02 of the parties thereto.Credit Agreement) (the “Fourteenth Amendment Closing Date”):
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.1 The Administrative Agent shall have received a Committed Loan Notice from Lenders constituting the Required Lenders, the Borrower and the Guarantors, counterparts (in accordance with the requirements hereof at least one day prior to the such number as may be requested date for funding by Administrative Agent) of this Fourteenth Amendment signed on behalf of such LoanPersons.
(g) 4.2 The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation fees and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” amounts due and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days payable on or prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received date hereof, including, to the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts extent invoiced, reimbursement or payment of all documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date Credit Agreement.
4.3 No Default shall have been paid in full (or paid concurrently with occurred and be continuing, after giving effect to the occurrence terms of the Closing Date)this Fourteenth Amendment.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) 4.4 The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating of the lien consummation of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agentan exchange offer for not less than $158.2 million face value of 2019 High Yield Notes.
(s) 4.5 The Administrative Agent shall have received a duly executed funds flow memorandum such documents as the Administrative Agent or special counsel to Administrative Agent may reasonably request, including, but not limited to, (a) additional mortgages, supplements to mortgages and financing statements, as the Administrative Agent may reasonably request, (b) lien searches, including UCC searches and such other searches as the Administrative Agent may reasonably request, (c) certified copies of organizational documents, resolutions of the board of directors, member or managers, as applicable of each of the Parent Guarantor and the Borrower and specimen signatures of those persons authorized to execute the Fourteenth Amendment on behalf of each of the Parent Guarantor and the Borrower, (d) good standing certificates issued by the jurisdiction of organization of each of the Parent Guarantor and the Borrower, (e) the delivery of an amended and restated Intercreditor Agreement in form and substance acceptable satisfactory to the Majority Lenders and (f) opinions of counsel to the Borrower as may be reasonably requested by the Administrative Agent. The Administrative Agent is hereby authorized and directed to declare this Fourteenth Amendment to be closed when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted in Section 12.02 of the Credit Agreement. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it on the Closing Date subject only to become effective -------------------- immediately upon satisfaction of each of the following conditions precedent, unless otherwise waived by precedent (the Lenders in their sole discretion:date of satisfaction thereof being the "Amendment Date"): --------------
(a) This Agreement The Administrative Agent shall have been received executed counterparts of (i) this Amendment duly executed by the Borrower, the Majority Banks and delivered by the Administrative Agent, (ii) the Guaranties from the Guarantors identified therein, (iii) the promissory notes, if any, needed to give effect to the increase in commitments under this Amendment, (iii) the Security Agreement from the Borrower and the Guarantors identified therein, (iv) the Pledge Agreement from the Borrower and the Guarantors identified therein, (v) the other collateral documents, (vi) the stock certificates and undated stock powers therefor executed in blank for the ownership interests which are the subject of the Pledge Agreement, (vii) the Intercreditor Agreements from the Borrower, the Administrative Agent and the other parties thereto, and (viii) opinions of counsel to the Credit Parties, in each Guarantorcase in form and substance reasonably satisfactory to the Administrative Agent and the Majority Banks.
(b) The Note Administrative Agent shall have been duly received from the Borrower and each of the Guarantors (i) copies of the resolutions, in form and substance reasonably acceptable to the Administrative Agent, authorizing the execution, delivery and performance of this Amendment and the other Loan Documents, of all other documents, if any, evidencing other necessary corporate action and governmental approvals with respect to this Amendment, and of the by-laws, partnership agreement, operating agreement or similar document relating to corporate governance in each case certified by the Secretary or an Assistant Secretary, in form reasonably satisfactory to the Administrative Agent, (ii) an incumbency certificate with specimen signatures for the officers authorized to sign the Loan Documents and the other certificates and documents to be executed and delivered under the Loan Documents certified by the BorrowerSecretary or an Assistant Secretary, in form reasonably satisfactory to the Administrative Agent, (iii) a certified copy of the articles of incorporation or organization from the state of organization and (iv) certificates of good standing or existence from the state of organization.
(c) Each Collateral Document The Administrative Agent shall have been duly executed received a certificate, in form and delivered by each detail reasonably satisfactory to the Administrative Agent, from the chief financial officer or treasurer of the parties theretoBorrower indicating that, as of the end of the fiscal quarter ending December 31, 2001, after giving pro forma effect to this Amendment (and the loans and commitments established therewith assuming that the commitments are fully advanced) and to the PAS financing referenced below in clause (e) (assuming all the proceeds of such PAS financing are used to repay Revolving Loans under the Credit Agreement), the Consolidated Leverage Ratio will not exceed 4.50:1.0.
(d) The Blackstone Consents Administrative Agent shall have been duly executed received copies certified as being true and delivered correct by each the Secretary or an Assistant Secretary of the parties theretoBorrower of the EchoStar Transaction Documents with all amendments, modifications, supplements, addenda, attachments and exhibits, and of the $5.525 billion financing commitment provided by Credit Suisse First Boston and Deutsche Bank AG in connection with the closing of the transactions contemplated therein.
(e) The Closing Date Subordination Agreements Administrative Agent shall have been duly executed received confirmation of (i) the establishment of new financing facilities of at least $1.725 billion in favor of PAS, and delivered by each (ii) the establishment of the parties theretoGMAC Financing Facility in an aggregate principal amount of up to $2 billion and confirmation of, among other things, extension of the maturity date under the GMAC Financing Facility to a date not sooner than the Termination Date under the Credit Agreement.
(f) The Administrative Agent shall have received a Committed Loan Notice confirmation of repayment in accordance with full and termination of the requirements hereof at least one day prior to commitments under any bridge financing obtained by the requested date for funding such LoanBorrower and release of any liens given in connection therewith.
(g) The Administrative Agent There shall not have receivedoccurred an event or development that has had or is reasonably likely to have a Material Adverse Effect from December 31, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed 2000 to the Administrative Agent, Amendment Date (except for and other than as disclosed in Form 10K and Form 10Q filings with the Collateral Agent Securities and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindExchange Commission).
(h) The Administrative Agent shall have received absence of any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that could be reasonably expected (i) to materially and adversely affect the Borrower and its subsidiaries taken as a copy of whole, or the certificate merger with EchoStar Communications Corporation (or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state any of its organizationsubsidiaries) described in the EchoStar Transaction Documents, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate to affect any transaction contemplated hereby or the ability of the Secretary Borrower or Assistant Secretary of each Loan Party dated its subsidiaries or any other obligor under the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws guarantees or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of security documents to perform their respective obligations under the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveDocuments.
(i) The Administrative Agent No Event of Default or Unmatured Event of Default shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) occurred and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementcontinuing.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by in the Credit Agreement and in the other Loan Parties in Article V Documents (except those which expressly relate to an earlier date) shall be true and correct in all material respectsrespects as of the Amendment Date.
(lk) The Lenders shall have received Payment by the Borrower of all documentation fees and other information required expenses owed by regulatory authorities with respect the Credit Parties to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 Banks and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agentconnection herewith.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Ninth Amendment shall make become effective as of the Loans to be made by it on first date (the Closing Date subject only to “Ninth Amendment Effective Date”) when each of the following conditions precedent, unless otherwise waived by the Lenders set forth in their sole discretionthis Section 5 shall have been satisfied:
(a) This Agreement the Administrative Agent’s shall have been duly received counterparts of this Ninth Amendment executed and delivered by the Borrower Borrowers, each other Loan Party, the Administrative Agent and each Guarantor.the Lenders;
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior an executed consent and amendment to the requested date for funding such Loan.
(g) The Administrative Agent shall have receivedTerm Loan Credit Agreement, on behalf dated as of itselfthe Ninth Amendment Effective Date, the Collateral Agent in form and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed substance satisfactory to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of consenting to this kind.Ninth Amendment;
(hc) The the Administrative Agent shall have received an officer’s certificate for each Loan Party certifying as to (i) a copy resolutions of the certificate Board of Directors or articles other organizational action authorizing execution and delivery of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery this Ninth Amendment and performance of the this Ninth Amendment and all Loan Documents to which such Person Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.incumbency of officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Ninth Amendment and the other Loan Documents to which such Loan Party is a party;
(id) The the Administrative Agent shall have received the results of an updated Budget (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties as defined in the states or other jurisdictions of formation of such Person Credit Agreement), in form and with respect to such other locations and names provided substance satisfactory to the Administrative Agent, together with which Budget is attached hereto as Exhibit B (in the case of clause “Ninth Amendment Budget”); and
(y)) copies of the financing statements (or similar documents) disclosed by such search and (iie) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form an executed letter of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to direction from the Borrower reasonably requested by the Lenders under applicable “know your customer” Agent, directing it to make certain Revolving Credit Loans to pay certain fees and antiexpenses (including all out-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(mof-pocket costs) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable counsel to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Abl Credit Agreement and Forbearance Agreement (Atlantic International Corp.)
Conditions Precedent. Each Lender This Amendment shall make become effective as of the Loans to be made by it date (the “Amendment Effective Date”) on the Closing Date subject only to which each of the following conditions precedent, unless otherwise precedent shall have first been satisfied (or waived by all of the Lenders in their sole discretion:2014A Incremental Lenders):
(a) This Agreement The Administrative shall have been received counterparts of this Amendment duly executed and delivered by the Borrower Borrower, the Guarantors and each Guarantorof the 2014A Incremental Lenders.
(b) The Note Administrative Agent shall have been duly executed received favorable written opinions (addressed to the Administrative Agent and delivered by the BorrowerLenders and dated the Amendment Effective Date) of (a) the general counsel of the Borrower and (b) ▇▇▇▇▇▇ & Bird LLP and other counsel for the Loan Parties, covering such matters relating to the Loan Parties or this Amendment as the Administrative Agent shall reasonably request and otherwise in form and substance reasonably satisfactory to the Administrative Agent.
(c) Each Collateral Document The Administrative Agent shall have received from the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party a certificate certifying that any certified copies of any articles or certificate of incorporation or formation, operating agreement, partnership agreement, bylaws or similar organizational documents and resolutions of such Loan Party previously delivered to the Administrative Agent with respect to such Loan Party in connection with the Credit Agreement have not been duly executed and delivered by each amended, supplemented or otherwise modified since the date of such delivery, or if any of the parties theretoforegoing has been amended, supplemented or otherwise modified (or, in the case of resolutions, if any additional resolutions regarding the Amendment have been adopted), copies of such amendments, supplements, modifications or resolutions certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, confirming that on the Amendment Effective Date: (i) the conditions set forth in accordance paragraphs (a) and (b) of Section 4.02 of the Credit Agreement are satisfied, (ii) the Borrower is in pro forma compliance with the requirements hereof at least one day prior financial covenants set forth in Section 6.01 of the Credit Agreement both immediately before and immediately after the Amendment Effective Date and (iii) after giving effect to the requested date 2014A Term Loans on a pro forma basis (assuming for funding such Loanpurposes thereof that the 2014A Term Commitments have been fully drawn), the Borrower and its Restricted Subsidiaries will be in compliance with a Senior Secured Leverage Ratio of not greater than 2.00:1.00.
(ge) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders 2014A Incremental Lender shall have received all documentation fees agreed to in writing by the Borrower and other information required by regulatory authorities with respect the Administrative Agent and to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered extent invoiced at least 10 days one Business Day prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts date of this Amendment, reimbursement or payment of all out-of-pocket expenses required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (reimbursed or paid concurrently with by the occurrence Borrower pursuant to Section 9.03(a) of the Closing Date)Credit Agreement.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Additional Tranche Term Loan Amendment (Healthsouth Corp)
Conditions Precedent. Each Lender This Action shall make be effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement The Administrative Agent shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly received counterparts of this Action, executed and delivered by each of the other parties theretohereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(fb) The Administrative Agent shall have received a Committed certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with respect to [***] and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Notice Agreement is true and correct in accordance with all material respects as of the requirements hereof at least one day prior Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the requested date for funding Effective Date (unless such Loanrepresentation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).
(gc) The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from [***] in connection with the Subject Fund Transactions.
(d) Each of the Administrative Agent and each Group Agent shall have receivedreceived an opinion, on behalf dated no earlier than the Effective Date, of itself, the Collateral Agent and the Lenders, an opinion of W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & R▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties, the Borrower Subsidiary Parties dated the Closing Date and addressed SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the LendersMajority Group Agents, in with respect to the Subject Fund Transactions.
(e) Each of the Administrative Agent and each case Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in form and substance customary for senior secured credit facilities in transactions of this kindreasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.
(hf) The Administrative Agent and the Collateral Agent shall have received (i) a copy searches of UCC filings in the certificate or articles jurisdiction of incorporation or organizationformation, including all amendments theretoas applicable, of each Loan Party of the New Entities and Project Companythe Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral in respect of the New Entities (the “New Collateral”), certified(ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), if applicable(c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(g) The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], the Collateral Agent and the Borrower, dated as of a recent date by the Secretary of State of the state of its organizationEffective Date, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Effective Date, (Biii) that a Joinder Agreement in the form attached thereto is a true as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***] and complete copy the Collateral Agent, dated as of resolutions duly adopted the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as Administrative Agent with respect to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveNew Entities.
(i) The Administrative Agent UCC financing statements relating to the New Collateral shall have received been duly filed in each office and in each jurisdiction where required in order to create and perfect the results of first priority Lien and security interest set forth in the Collateral Documents (x) searches of the Uniform Commercial Code filings (or equivalent filings) as supplemented and (y) judgment and tax lien searches, made with respect to as such term is defined in the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative AgentAgreement, together with (in the case of clause (y)as amended) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Borrower shall have properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and the Parent Pledge pledged interests in the [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies.
(i) Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been duly executed and delivered by each Loan Party that is satisfied with respect to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee RequirementSubject Fund Transactions.
(j) The Administrative Agent shall have received a certificate for its own account all costs and expenses described in the form Section 6 of Exhibit Ithis Action, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall for which invoices have been paid presented in full (or paid concurrently with the occurrence of the Closing Date)connection herewith.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make be effective upon the Loans to be made satisfaction by it on the Closing Date subject only to Borrower of, or written waiver by Credit Agent of, the following conditions precedentand any other conditions set forth in this Amendment, unless otherwise by no later than 4:00 p.m. (Chicago time) on the date hereof, subject to extension at the discretion of the Credit Agent (with the date, if at all, by which such conditions have been satisfied or waived by being referred to herein as, the Lenders in their sole discretion“Effective Date”), failing which this Amendment and all related documents shall be null and void at the option of the Credit Agent:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Credit Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to following:
(i) This Amendment, duly executed by the requested date for funding such LoanBorrower, the Lenders, and the Credit Agent.
(gii) The Administrative Agent shall have received, on behalf Copies of itself, the Collateral Agent letters from HUD and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for Mae granting the approvals described in Section 4.16(i)(g) of the Loan Parties dated the Closing Date and addressed Agreement as amended by this Amendment.
(iii) An opinion of outside counsel to the Administrative AgentBorrower, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindreasonably acceptable to the Credit Agent.
(hiv) The Administrative Agent shall have received (i) a copy A certificate of an appropriate officer of the manager of the Borrower in the form of Exhibit H to this Amendment.
(v) A certificate of legal existence and good standing (or articles the equivalent) of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date the Borrower issued by the Secretary of State of the state of its organization, and a certificate as to the good standing Michigan (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate other appropriate official of the Secretary or Assistant Secretary State of each Loan Party Michigan) dated the Closing Date and certifying no more than thirty (A30) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents days prior to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovethis Amendment.
(ivi) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) A fully completed and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee RequirementIRS Form W-9.
(jvii) The Administrative Such other documents as the Credit Agent shall have received a certificate in the form may reasonably request.
(b) No Default or Event of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent Default will exist as of the Closing Effective Date.
(kc) On the Closing Date, the The representations and warranties made by the Borrower in the Loan Parties in Article V Agreement and the other Loan Documents shall have been when made, and will be on the Effective Date, true and correct in all material respects, except as to matters which speak to a specific date and changes in the ordinary course to the extent permitted and contemplated by the Loan Agreement.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(nd) The Borrower shall have established paid to the Interest Reserve AccountCredit Agent, for the account of the Lenders, a fully earned, non-refundable commitment fee in the amount of $58,333.00.
(oe) All amounts required In addition to be paid all other expense payment and reimbursement obligations of the Borrower under Section 2.06 the Loan Agreement and other Loan Documents, the BAML Engagement Letter required to be paid on Borrower will pay or before reimburse the Closing Date shall have been paid Credit Agent its costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses and disbursements) incurred in full (or paid concurrently connection with the occurrence preparation of this Amendment, the Closing Date)Loan Agreement, and any other documents in connection herewith and therewith.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Mortgage Warehousing and Security Agreement (Ares Commercial Real Estate Corp)
Conditions Precedent. Each Lender shall make The effectiveness of this Agreement and the Loans to be made by it availability of the Necessary Acquisition Funds under the Amended Credit Agreement on the Closing Date Fourth Amendment Effective Date, in each case, are subject only solely to satisfaction (or waiver) of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received (i) counterparts of this Agreement duly executed by (A) a Committed Responsible Officer of each Loan Notice in accordance with Party (including each New Subsidiary), (B) each Lender (including each New Lender), (C) each L/C Issuer, (D) the requirements hereof at least one day Swingline Lender, and (E) the Administrative Agent, and (ii) to the extent requested by any New Lender prior to the requested Fourth Amendment Effective Date, a Note in favor of such New Lender duly executed by a Responsible Officer of the Borrower.
(b) The Administrative Agent shall have received the following: (i) copies of the Organization Documents of each Loan Party (including each New Subsidiary) certified to be true and complete as of a recent date by the appropriate Governmental Authority of the jurisdiction of its organization and certified by a Responsible Officer of such Loan Party, as applicable, to be true and correct as of the Fourth Amendment Effective Date; (ii) such certificates of resolutions or other action, incumbency certificates, and/or other certificates of Responsible Officers of each Loan Party (including each New Subsidiary) as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement, the Amended Credit Agreement, the Amended Security Agreement and the other Loan Documents to which such Loan Party is a party; (iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (including each New Subsidiary) is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization.
(c) The Administrative Agent shall have received an opinion or opinions of counsel for the Loan Parties (including the New Subsidiaries), dated the Fourth Amendment Effective Date and addressed to the Administrative Agent, the L/C Issuers and the Lenders (including the New Lenders), in form and substance acceptable to the Administrative Agent.
(d) The Arrangers shall have received: (i) the audited consolidated balance sheets of the BlueHalo Acquisition Target as of December 31, 2023 and 2022 and the related audited consolidated statements of operations, changes in members’ equity and cash flows of the BlueHalo Acquisition Target for the years ended December 31, 2023, 2022 and 2021 (together with the consent of the BlueHalo Acquisition Target’s independent auditing firm to the filing of such audited financial statements), (ii) the unaudited consolidated interim financial statements of the BlueHalo Acquisition Target as of and for the nine (9) months ended September 30, 2024 and 2023 and the related unaudited consolidated statements of operations, changes in members’ equity and cash flows of the BlueHalo Acquisition Target for the nine (9) months ended September 30, 2024 and 2023, (iii) all other audited and unaudited financial statements of the BlueHalo Acquisition Target and its Subsidiaries required to be delivered to the Borrower pursuant to the terms of the BlueHalo Acquisition Agreement and listed in Section 6.11 of the Company Disclosure Schedule (as defined in the BlueHalo Acquisition Agreement (as in effect on the BlueHalo Original Signing Date)), (iv) audited annual consolidated financial statements of the Borrower and its Subsidiaries for the three (3) most recently completed fiscal years of the Borrower ended at least ninety (90) days prior to the Fourth Amendment Effective Date, to include in each case a balance sheet and statements of income, cash flows and shareholders’ equity (including all footnotes to the foregoing, all in reasonable detail and setting forth in comparative form the corresponding figures as of the end of, and for, the applicable preceding fiscal year of the Borrower), (v) unaudited consolidated financial statements of the Borrower and its Subsidiaries for each fiscal quarter of the Borrower ended after the close of its most recently ended fiscal year and at least forty-five (45) days prior to the Fourth Amendment Effective Date (other than the fourth fiscal quarter of the Borrower’s fiscal year), to include in each case a balance sheet and statements of income and cash flows, all in reasonable detail and setting forth in comparative form the corresponding figures as of the end of, and for the corresponding period in, the applicable preceding fiscal year of the Borrower, and (vi) pro forma financial statements of the Borrower and its Subsidiaries as of and for the twelve (12)-month period ended July 27, 2024, to include a balance sheet and statements of income, cash flows and shareholders’ equity, prepared after giving effect to the BlueHalo Transactions as if the BlueHalo Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements).
(e) Since the BlueHalo Original Signing Date, there shall not have occurred any “Company Material Adverse Effect” (as defined in the BlueHalo Acquisition Agreement (as in effect on the BlueHalo Original Signing Date)).
(f) To the extent required pursuant to the BlueHalo Limited Conditionality Provisions, the Administrative Agent shall have received:
(i) (A) searches of UCC filings in the jurisdiction of organization of each Loan Party (including each New Subsidiary), copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens, (B) tax lien and judgment searches with respect to each Loan Party (including each New Subsidiary), and (C) UCC financing statements with respect to each New Subsidiary in a form appropriate for filing in each applicable jurisdiction as are necessary to perfect the Administrative Agent’s security interest in the Collateral to the extent that a security interest in such Collateral may be perfected by the filing of a UCC financing statement;
(ii) (A) searches of ownership of registered and pending Intellectual Property of each Loan Party (including each New Subsidiary) in the United States Copyright Office and the United States Patent and Trademark Office, and (B) duly executed short-form Intellectual Property notices in the form required by the Collateral Documents as are necessary to perfect the Administrative Agent’s security interest in such Intellectual Property;
(iii) to the extent required to be delivered pursuant to the terms of the Collateral Documents, (A) stock, equity, share or membership certificates and endorsements of, or recordings of, or notations on, such certificates evidencing Equity Interests pledged pursuant to the terms of the Collateral Documents, together with, where applicable, undated stock or transfer powers duly executed in blank, and (B) all instruments, documents and chattel paper in the possession of any of the Loan Parties (including any of the New Subsidiaries), together with allonges or assignments as may be necessary to perfect the Administrative Agent’s security interest in the Collateral; provided, that, to the extent such deliverables are not received by the Administrative Agent on or prior to the Fourth Amendment Effective Date, it is understood and agreed that the condition set forth in this Section 3(f)(iii) shall be satisfied to the extent arrangements reasonably satisfactory to the Administrative Agent shall have been made on or prior to the Fourth Amendment Effective Date for the delivery of such deliverables to the Administrative Agent substantially concurrently with the Fourth Amendment Effective Date; and
(vi) copies of insurance certificates and endorsements of insurance evidencing insurance meeting the requirements set forth in the Loan Documents; provided, that, to the extent any security interest in any Collateral is not or cannot be provided and/or perfected on the Fourth Amendment Effective Date (other than (1) the granting of a security interest pursuant to the Collateral Documents, (2) the perfection of the security interest in assets or property with respect to which a Lien may be perfected by the filing of a UCC financing statement and/or the filing of short-form Intellectual Property notices with the United States Patent and Trademark Office or the United States Copyright Office, and (3) the perfection of the security interest in certificated Equity Interests of any Domestic Subsidiary (provided, that, with respect to any such certificates that are held by the BlueHalo Acquisition Target, the BlueHalo Acquisition Seller, the BlueHalo Acquisition Target’s existing lenders or the BlueHalo Acquisition Seller’s existing lenders, such certificates shall only be required to be delivered on the Fourth Amendment Effective Date to the extent such certificates are received by the Borrower on or prior to the Fourth Amendment Effective Date after the Borrower’s use of commercially reasonable efforts to obtain such certificates)) after the Borrower’s use of commercially reasonable efforts to do so, then the grant, provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Necessary Acquisition Funds on the Fourth Amendment Effective Date, but instead shall be required to be delivered within thirty (30) days after the Fourth Amendment Effective Date (or such longer period of time as may be agreed by the Administrative Agent in its sole discretion) and no documentary deliverable shall be a condition to the funding such Loanof the Necessary Acquisition Funds other than documents required to grant or perfect a security interest to the extent described in clauses (1), (2) and (3) above (the provisions of this proviso, the “BlueHalo Limited Conditionality Provision”).
(g) The Administrative Agent shall have receivedreceived a solvency certificate, in the form agreed between the Borrower and the Arrangers prior to the Fourth Amendment Effective Date, duly executed by the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed a Consolidated basis after giving effect to the Administrative AgentBlueHalo Transactions, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindare Solvent.
(h) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that the conditions precedent specified in Section 3(e), (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) abovej), and (Dl) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovehave been satisfied.
(i) The Administrative Agent BlueHalo Acquisition Agreement shall be in full force and effect. The BlueHalo Acquisition shall have received been consummated, or substantially concurrently with the results of (x) searches funding of the Uniform Commercial Code filings (Necessary Acquisition Funds on the Fourth Amendment Effective Date shall be consummated, in all material respects in accordance with the terms of the BlueHalo Acquisition Agreement, without giving effect to any modifications or equivalent filings) and (y) judgment and tax lien searches, made with respect amendments to the Loan Parties BlueHalo Acquisition Agreement (as in effect on the BlueHalo Original Signing Date) or consents or waivers thereto or thereunder by the Borrower or any of its Affiliates that are material and adverse to the interests of the Lenders providing the Necessary Acquisition Funds (in their respective capacities as such) or the Arrangers (in their respective capacities as such) without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned); provided, that, for purposes of the condition set forth in this Section 3(i), it is understood and agreed that: (i) any reduction of the purchase price in connection with the BlueHalo Acquisition shall not be deemed to be material and adverse to the interests of the Lenders providing the Necessary Acquisition Funds and the Arrangers if such reduction of the purchase price shall be allocated, on a dollar-for-dollar basis, to a reduction in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative AgentBlueHalo Equity Contribution (or, together with (in the case of clause (y)) copies a reduction in the purchase price in connection with the BlueHalo Acquisition relating to a reduction in the amount of the financing statements (or similar documents) disclosed by obligations to be repaid in connection with the BlueHalo Refinancing, such search and reduction of the purchase price shall be allocated, on a dollar-for-dollar basis, to a reduction in the amount of the Necessary Acquisition Funds on a pro rata basis); (ii) any increase of the Security Agreement purchase price in connection with the BlueHalo Acquisition shall not be deemed to be material and adverse to the interests of the Lenders providing the Necessary Acquisition Funds and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity Arrangers if such increase of the Borrower and each purchase price is (A) satisfied by increasing the amount of the Closing Pledged Companies accompanied by undated stock powers executed in blank BlueHalo Equity Contribution, and (yB) documents in an aggregate amount not in excess of $164,000,000; and instruments (iii) any change to the definition of “Company Material Adverse Effect” (as defined in the BlueHalo Acquisition Agreement (as in effect on the BlueHalo Original Signing Date)) shall be recorded or filed that deemed material and adverse to the Administrative Agent may deem reasonably necessary to satisfy Lenders providing the Collateral Necessary Acquisition Funds and Guarantee Requirementthe Arrangers.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by of the Loan Parties (including the New Subsidiaries) contained in Article V this Agreement, the Amended Credit Agreement, the Amended Security Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be made on the Fourth Amendment Effective Date; provided, that, only the accuracy in all material respects (or in all respects if already qualified by materiality) of the BlueHalo Specified Representations shall be a condition to funding of the Necessary Acquisition Funds on the Fourth Amendment Effective Date. The BlueHalo Acquisition Agreement Specified Representations shall be true and correct in all material respectsrespects (or in all respects if already qualified by materiality) on and as of the Fourth Amendment Effective Date.
(k) The BlueHalo Refinancing shall have been, or substantially concurrently with the funding of the Necessary Acquisition Funds on the Fourth Amendment Effective Date shall be, consummated.
(l) Substantially concurrently with the funding of the Necessary Acquisition Funds on the Fourth Amendment Effective Date, the Borrower shall have consummated BlueHalo Equity Contribution.
(m) The Lenders Administrative Agent shall have received (i) a Loan Notice with respect to the Borrowing of the Necessary Acquisition Funds to be borrowed on the Fourth Amendment Effective Date, (ii) if all or any portion of the Necessary Acquisition Funds to be funded on the Fourth Amendment Effective Date consist of Term SOFR Loans, a Funding Indemnity Letter, and (iii) a funds flow or notice of account designation, in form and substance reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent for the disbursement of the proceeds of the Necessary Acquisition Funds.
(n) At least three (3) Business Days prior to the Fourth Amendment Effective Date, (i) the Administrative Agent and each Lender (including each New Lender) shall have received all documentation and other information about the Loan Parties (including the New Subsidiaries) as has been reasonably requested by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Fourth Amendment Effective Date that is required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that , and (ii) if the Lenders Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall use commercially reasonable efforts have delivered to ensure that such requests are delivered the Administrative Agent and each Lender (including each New Lender) requesting the same at least 10 days ten (10) Business Days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received Fourth Amendment Effective Date, a Beneficial Ownership Certification with respect to the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve AccountBorrower.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter fees required to be paid on the Fourth Amendment Effective Date pursuant to this Agreement or before any other Loan Document, or any commitment letter, engagement letter or fee letter executed and delivered by the Closing Date shall have been paid Borrower to any Arranger or any Lender in full (or paid concurrently connection with this Agreement, the occurrence funding of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy AmericasNecessary Acquisition Funds and the consummation of the BlueHalo Transactions, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.all reasonable out-of-pocket expen
Appears in 1 contract
Sources: Credit Agreement (AeroVironment Inc)
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it on the Closing Date subject only to effective upon satisfaction of the following conditions precedentprecedent (the date such conditions precedent are satisfied, unless otherwise waived by the Lenders in their sole discretion:“Second Amendment Effective Date”):
(a) This Agreement shall have been Receipt by the Administrative Agent of counterparts of this Amendment duly executed and delivered by the Borrower Company, the Designated Borrowers, the Guarantors, the Required Lenders and each Guarantor.Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender;
(b) The Note shall have been duly executed and delivered Receipt by the Borrower.Administrative Agent of a favorable opinion of in-house legal counsel of the Company, addressed to the Administrative Agent and each Lender, dated as of the Second Amendment Effective Date, in form and substance satisfactory to the Administrative Agent;
(c) Each Collateral Document The Administrative Agent shall have been duly executed and delivered by each received the consolidated financial statements of the parties thereto.Company and its Subsidiaries for the fiscal year ended January 3, 2016, including balance sheet and income and cash flow statements, in each case, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP;
(d) The Blackstone Consents There shall not have been duly executed and delivered by each occurred a material adverse change since January 3, 2016, in the business, assets, Properties, liabilities (actual or contingent), operations or condition (financial or otherwise) of the parties thereto.Company and its Subsidiaries taken as a whole;
(e) The Closing Date Subordination Agreements There shall have been duly executed and delivered by each not exist any action, suit, investigation or proceeding against the Company or any Subsidiary pending or, to the knowledge of the parties thereto.Company, threatened in any court or before an arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(f) Receipt by the Administrative Agent of the following, each of which shall be originals or facsimiles (followed promptly by originals), in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) copies of the Organization Documents of each Loan Party certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Second Amendment Effective Date;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party; and
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization or formation;
(g) Receipt by the Administrative Agent of a certificate signed by a Responsible Officer of the Company certifying that the conditions specified in Sections 2(d), (e), (h) and (i) have been satisfied;
(h) The representations and warranties of each Loan Party contained in Article VI of the Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Credit Agreement;
(i) No Default shall exist;
(j) Receipt by the Administrative Agent of any fees required to be paid on or prior to the Second Amendment Effective Date, including a fee equal to 2.0 basis points of the aggregate amount of Revolving Commitments of each Lender party hereto;
(k) The Company shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Second Amendment Effective Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings;
(l) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles Company’s notice to the administrative agent for that certain Credit Agreement (the “Bridge Facility”), dated as of incorporation or organizationDecember 11, including all amendments thereto2016, of each Loan Party and Project among the Company, certified, if applicable, as of a recent date by the Secretary of State of the state certain of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrowersubsidiaries, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a lenders party thereto, together with (x) certificates representing and Bank of America, N.A., as administrative agent, that this Amendment constitutes a “Qualifying Amendment” under the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.Bridge Facility; and
(jm) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as copy of the Closing Date.
Scheme Press Release or Offer Press Release (k) On as applicable). Without limiting the Closing Dategenerality of the provisions of Section 10.04 of the Credit Agreement, for purposes of determining compliance with the representations and warranties made by the Loan Parties conditions specified in Article V this Section 2, each Lender that has signed or otherwise become a Lender under this Amendment shall be true and correct in all material respects.
(l) The Lenders shall deemed to have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsconsented to, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required approved or accepted or to be paid under Section 2.06 and the BAML Engagement Letter satisfied with, each document or other matter required thereunder to be paid on consented to or before approved by or acceptable or satisfactory to a Lender unless the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable notice from such Lender prior to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable proposed Second Amendment Effective Date specifying its objection thereto. Notwithstanding anything to the Administrative Agentcontrary in this Amendment, this Section 2 and the conditions set out in this Section 2 shall cease to apply and be of no further effect on and from the Second Amendment Effective Date.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective as of the Loans to be made by it date (the “Amendment Effective Date”) on the Closing Date subject only to which each of the following conditions precedent, unless otherwise precedent shall have first been satisfied (or waived by all of the Lenders in their sole discretion:Lenders):
(a) This Agreement The Administrative shall have been received counterparts of this Amendment duly executed and delivered by the Borrower Borrower, the Guarantors and each Guarantorof the Lenders.
(b) The Note Administrative Agent shall have been duly executed received favorable written opinions (addressed to the Administrative Agent and delivered by the BorrowerLenders and dated the Amendment Effective Date) of (a) the general counsel of the Borrower and (b) ▇▇▇▇▇▇ & Bird LLP and other counsel for the Loan Parties, covering such matters relating to the Loan Parties or this Amendment as the Administrative Agent shall reasonably request and otherwise in form and substance reasonably satisfactory to the Administrative Agent.
(c) Each Collateral Document The Administrative Agent shall have received from the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party a certificate certifying that any certified copies of any articles or certificate of incorporation or formation, operating agreement, partnership agreement, bylaws or similar organizational documents and resolutions of such Loan Party previously delivered to the Administrative Agent with respect to such Loan Party in connection with the Credit Agreement have not been duly executed and delivered by each amended, supplemented or otherwise modified since the date of such delivery, or if any of the parties theretoforegoing has been amended, supplemented or otherwise modified (or, in the case of resolutions, if any additional resolutions regarding the Amendment have been adopted), copies of such amendments, supplements, modifications or resolutions certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, confirming that on the Amendment Effective Date: (i) the conditions set forth in accordance paragraphs (a) and (b) of Section 4.02 of the Credit Agreement are satisfied, (ii) the Borrower is in pro forma compliance with the requirements hereof at least one day prior financial covenants set forth in Section 6.01 of the Credit Agreement both immediately before and immediately after the Amendment Effective Date and (iii) after giving effect to the requested date 2014 Term Loans on a pro forma basis (assuming for funding such Loanpurposes thereof that the 2014 Term Commitments have been fully drawn), the Borrower and its Restricted Subsidiaries will be in compliance with a Senior Secured Leverage Ratio of not greater than 2.00:1.00.
(ge) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders Lender shall have received all documentation fees agreed to in writing by the Borrower and other information required by regulatory authorities with respect the Administrative Agent and to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered extent invoiced at least 10 days one Business Day prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts date of this Amendment, reimbursement or payment of all out-of-pocket expenses required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (reimbursed or paid concurrently with by the occurrence Borrower pursuant to Section 9.03(a) of the Closing Date)Credit Agreement.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (such date, the “Seventh Amendment Effective Date”) when each of the following conditions precedent, unless otherwise is satisfied (or waived by in accordance with Section 12.02(b) of the Credit Agreement):
5.1 The Administrative Agent and the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed received all fees and delivered other amounts due and payable in connection with this Amendment or any other Loan Document on or prior to the Seventh Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower and each Guarantorpursuant to this Amendment or any other Loan Document.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 5.2 The Administrative Agent shall have received a Committed Loan Notice in accordance with counterpart of this Amendment signed by the requirements hereof at least one day prior to Borrower, the requested date for funding such LoanGuarantors and each Lender.
(g) 5.3 The Administrative Agent shall have receivedreceived a certificate of a Responsible Officer of the Borrower certifying as to the representations and warranties in Section 6.2(d) below.
5.4 The Administrative Agent shall be reasonably satisfied that the existing Mortgages, as supplemented to date and together with any supplements thereto delivered in connection herewith, after the same are recorded in the appropriate filing offices, reflect a first priority Lien in favor of the Administrative Agent on behalf at least 90% of itselfthe PV-9 of the Borrowing Base Properties.
5.5 The Administrative Agent shall have received title information as the Administrative Agent may reasonably require, satisfactory to the Collateral Administrative Agent, setting forth the status of title to at least 90% of the PV-9 of the Borrowing Base Properties.
5.6 The Administrative Agent shall have received appropriate UCC searches reflecting no prior Liens encumbering the Properties of the Borrower and the Lenders, Loan Parties other than those permitted by Section 9.03 of the Credit Agreement.
5.7 The Administrative Agent shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindParties.
5.8 Since December 31, 2020, excluding results from (hi) general changes in hydrocarbon prices, (ii) general changes in industry or economic conditions, and (iii) general changes in political conditions, including any engagements of hostilities, acts of war or terrorist activities or changes imposed by a governmental authority associated with additional security, there has not been any change, development or event that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.
5.9 The Administrative Agent shall have received (i) a copy certificates of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance insurance coverage of the Loan Documents Parties in form and substance reasonably satisfactory to which such Person is a party and, the Administrative Agent evidencing that the Loan Parties are carrying insurance in the case accordance with Section 8.06 of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveCredit Agreement.
(i) 5.10 The Administrative Agent shall have received the results of (x) searches certificates of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made appropriate State agencies with respect to the Loan Parties in the states or other jurisdictions existence, qualification and good standing of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that in each jurisdiction where any such Loan Party is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded organized or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementowns Borrowing Base Properties.
(j) 5.11 The Administrative Agent shall have received a certificate in the form of Exhibit ISolvency Certificate, dated the Closing Date and signed duly executed by the Chief a Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent dated as of the Closing Seventh Amendment Effective Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) . The Administrative Agent is hereby authorized and directed to declare this Amendment to be effective (and the Seventh Amendment Effective Date shall have occur) when it has received estoppel letters duly executed by Yingli Green Energy Americasdocuments confirming or certifying, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to satisfaction of the Administrative Agent.
, compliance with the conditions set forth in this Section 5 (ror the waiver of such conditions as permitted in Section 12.02(b) The Administrative Agent of the Credit Agreement). Such declaration shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Tradingbe final, LLC shall have been filed in the appropriate filing office in form conclusive and substance acceptable binding upon all parties to the Administrative AgentCredit Agreement for all purposes.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Silverbow Resources, Inc.)
Conditions Precedent. Each Lender This Amendment shall make the Loans to not be made by it on the Closing Date subject only to the following conditions precedent, effective unless otherwise waived by the Lenders in their sole discretionand until:
(a) This Agreement shall have been duly Administrative Agent receives an original of this Amendment executed by Borrower, Parent, Guarantors, Administrative Agent, and delivered by the Borrower and each Guarantor.Lenders;
(b) The Note at least three (3) days prior to the Fourth Amendment Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have been duly executed and delivered by the Borrower.delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party;
(c) Each Collateral Document shall have been duly executed Administrative Agent receives a certificate of Responsible Officers of each Loan Party evidencing formation and delivered by organization of such Loan Parties, evidencing identity, authority and capacity of each Responsible Officer thereof in connection with this Amendment and the other Loan Documents, and certificates of the parties thereto.resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Administrative Agent may require;
(d) The Blackstone Consents shall have been duly executed and delivered by each Administrative Agent receives evidence dated within 30 days as of the parties thereto.date hereof that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation and each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received receives a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Winston & ▇▇▇S▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and the Lenderseach Lender, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing matters set forth in the Credit Agreement, as amended hereby;
(where relevantf) of each Loan Party and Project Company as of Administrative Agent receives a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete fully executed copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents certain Fourth Amendment to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Intercompany Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.date hereof, by and between Borrower and Advisor (the “Fourth Intercompany Amendment”); and
(kg) On the Closing Date, the representations and warranties made in the Credit Agreement, as amended by the this Amendment, and each other Loan Parties in Article V shall be Document are true and correct in all material respects.
respects (lwithout duplication of any materiality qualifiers set forth therein) The Lenders shall have received all documentation on and other information required by regulatory authorities with respect as of the date of this Amendment as though made as of the date of this Amendment except to the Borrower reasonably requested extent that (i) any of them speak to a different specific date or (ii) the facts on which any of them were based have been changed by transactions contemplated or permitted by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable LawCredit Agreement.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Ashford Inc.)
Conditions Precedent. Each Lender The amendments, consents and other agreements contained herein shall make only be effective upon the Loans to be made satisfaction or waiver by it on the Closing Date subject only to Administrative Agent and Consenting Lenders of each of the following conditions precedentprecedent (the date of such satisfaction or waiver, unless otherwise waived by the Lenders in their sole discretion:“Second Amendment Effective Date”):
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice copy of (i) this Amendment, dated as of the date hereof, in accordance with the requirements hereof at least one day prior form and substance reasonably acceptable to the requested date for funding such Loan.
(g) The Administrative Agent shall have receivedAgent, on behalf of itselfduly executed by the Borrowers and each other Loan Party, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and Lenders sufficient to constitute Required Lenders and (ii) the LendersFee Letter, in each case dated as of the date hereof, in form and substance customary for senior secured credit facilities in transactions of this kind.reasonably acceptable to the Administrative Agent, duly executed by the Borrowers;
(hb) The payment of all fees required to be paid to the Administrative Agent and the Lenders on or before the Second Amendment Effective Date, and all expenses in connection with this Amendment required to be reimbursed in accordance with Section 11.04 of the Credit Agreement, in each case, to the extent invoiced or otherwise documented no later than the date that is on or before the Second Amendment Effective Date;
(c) the Administrative Agent shall have received (i) a copy of an Officer’s Certificate dated the certificate or articles of incorporation or organizationSecond Amendment Effective Date, including all amendments thereto, certifying as to the Organization Documents of each Loan Party and Project Company(which, certifiedto the extent filed with a Governmental Authority, if applicable, shall be certified as of a recent date by such Governmental Authority), with respect to the Secretary of State Australian Borrower, its members register, the resolutions, or, in the case of the state Australian Borrower, resolutions or extracts of its organizationresolutions, and a certificate as to of the governing body of each Loan Party, the good standing standing, existence or its equivalent (where relevantif generally available in the applicable jurisdiction) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary incumbency (including specimen signatures) of the Responsible Officers of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Party;
(id) The the Administrative Agent shall have received favorable opinions of U.S. and Australian counsel for the results of (x) searches of Loan Parties, dated the Uniform Commercial Code filings (or equivalent filings) Second Amendment Effective Date and (y) judgment addressed to the Administrative Agent and tax lien searchesthe Lenders, made including, without limitation, with respect to the Loan Parties in the states or other jurisdictions of formation of such Person Australia Mortgage and with respect to such other locations continuing security interests and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower otherwise in form and substance acceptable to the Administrative Agent.;
(re) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly complete, fully executed funds flow memorandum amendment to the Amended and Restated Intercreditor Agreement, in the form of Exhibit F attached hereto (the “Amended and Restated Intercreditor Agreement”);
(f) the Administrative Agent shall have received copies of the complete, fully executed fifth amendment to the ABL Credit Agreement, in form and substance acceptable satisfactory to the Agent and the Lenders (the “ABL Amendment”), including all schedules, annexes and exhibits thereto, and each other document, agreement or instrument entered into by any Loan Parties in connection with the Fifth Amendment to ABL Credit Agreement and the First Amendment to ABL Pledge Agreement, including, without limitations, written consent of the ABL Agent to the amendments effected hereby and in accordance with Section 5.2 of the Intercreditor Agreement;
(g) the Administrative Agent (or a representative thereof) shall have received (i) original, fully executed, compiled and notarized (if required) copies of the AUS Security Documents (under and as defined in the Amended Credit Agreement), other than the AUS Intercreditor Note and AUS Subordination Agreement (which, for the avoidance of doubt, will be delivered on a post-closing basis in accordance with Amended Credit Agreement), and (ii) all such other documents, agreements, instruments, certificates or notices as the Administrative Agent, or any Lender party hereto, may reasonably require in order to (i) carry out more effectively the purposes of this Amendment, (ii) to the fullest extent permitted by applicable Law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so;
(h) no order, injunction or judgment has been entered into prohibiting the closing of the Amendment;
(i) the representations and warranties set forth in Section 7 of this Amendment shall be true and correct; and
(j) the Loan Parties shall delivered such other documents and satisfied such other conditions as requested by the Administrative Agent and the Lenders, including those listed on the closing list delivered in connection therewith.
Appears in 1 contract
Conditions Precedent. Each Lender The obligation of each of CSFB Cayman and Citi/SSB to make Incremental Term Loans hereunder shall make the Loans be subject to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by On the Borrower and Incremental Term Loan Closing Date, each Guarantor.
of the conditions set forth in paragraphs (b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of Article IV of the parties thereto.
(d) The Blackstone Consents Credit Agreement shall have been duly executed be satisfied, and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior certificate to the requested that effect dated such date for funding such Loan.and executed by a Financial Officer of Terex;
(gb) The condition set forth in Section 2.27(c)(ii) of the Credit Agreement shall have been satisfied, and the Administrative Agent shall have received a certificate to that effect dated the Incremental Term Loan Closing Date, executed by a Financial Officer of Terex and containing a reasonably detailed calculation of the ratios contemplated thereby;
(c) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent CSFB Cayman and the LendersCiti/SSB, an a favorable written opinion of Eric Cohen, General Counsel of Terex, substantially to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPth in Exhibit A, special counsel for the Loan Parties (i) dated the Incremental Term Loan Closing Date and Date, (ii) addressed to the Administrative Agent, CSFB Cayman and Citi/SSB and (iii) covering such matters relating to the Collateral Loan Documents as the Administrative Agent shall reasonably request, and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindTerex hereby requests such counsel to deliver such opinion.
(hd) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organizationincorporation, including all amendments thereto, of each Loan Party and Project CompanyTerex, certified, if applicable, certified as of a recent date by the Secretary of State of the state State of its organizationDelaware (or a certificate of a Responsible Officer of Terex to the effect that there has been no change to such documents since the last such documents previously delivered to the Administrative Agent), and a certificate as to the good standing (where relevant) of each Loan Party and Project Company Terex as of a recent date, date from such Secretary of State or similar Governmental Authority and State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party Terex dated the Incremental Term Loan Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company Terex as in effect on the Incremental Term Loan Closing DateDate and at all times since a date prior to the date of the resolutions described in clause (B) below (or a certificate of a Responsible Officer of Terex to the effect there has been no change to such documents since the last such documents previously delivered to the Administrative Agent), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party Terex authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have Terex has not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document this Agreement on behalf of any Loan Party and countersigned by Terex; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as CSFB Cayman, Citi/SSB or the Administrative Agent may reasonably request;
(i) Each of the amendments or modifications to the Security Documents reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Security Documents shall have been delivered to First American Title Insurance Company of New York ("FATICO"), with instructions to file and record such Security Documents in the recording office as specified on Schedule 3.19(d) of the Credit Agreement as promptly as practicable after the Incremental Term Loan Closing Date and (iii) FATICO shall have received from Terex all recording fees and mortgage taxes due upon filing.
(if) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) all fees due and (y) judgment and tax lien searches, made with respect payable pursuant to the Loan Parties in fee letter dated the states date hereof among Terex, CSFB Cayman, CSFB, CUSA and SSBI and all other amounts due and payable on or other jurisdictions of formation of such Person and with respect to such other locations and names provided prior to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Incremental Term Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect including, to the Borrower reasonably requested by the Lenders under applicable “know your customer” and antiextent invoiced, reimbursement or payment of all reasonable out-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts of-pocket expenses required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (reimbursed or paid concurrently with the occurrence of the Closing Date)by Terex hereunder or under any other Loan Document.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Incremental Term Loan Assumption Agreement (Terex Corp)
Conditions Precedent. Each Lender The following shall make the Loans to be made by it on the Closing Date subject only conditions precedent to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretioneffectiveness of this Amendment:
(a) This Agreement The Administrative Agent shall have been duly executed received the written consent of each of the Banks to its execution and delivered by the Borrower and each Guarantor.delivery of this Amendment;
(b) The Note ▇▇▇▇▇ Group shall have been duly executed and delivered by a written reaffirmation of the Borrower.Subordination Agreement substantially in the form of Exhibit A hereto;
(c) Each Collateral Document Borrower shall have been duly executed issued the Master Note to the Administrative Agent, and delivered by shall have issued Discretionary Notes to each of the parties thereto.Bank requesting a Discretionary Note;
(d) The Blackstone Consents Borrower shall have been duly executed and delivered by each an Amendment to the Deed of Trust, substantially in the parties thereto.form of Exhibit B hereto;
(e) The Closing Date Subordination Agreements Administrative Agent shall have been duly executed received a legal opinion of counsel to Borrower and delivered HRN with respect to the due authorization, execution and delivery of this Amendment by each of Borrower and HRN, the parties thereto.enforceability thereof and such related matters as the Administrative Agent may reasonably request;
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance such certificates with the requirements hereof at least one day prior respect to the requested date for funding such Loan.authorization of this Amendment under Borrower's Partnership Agreement as it may reasonably request;
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed received such estoppel certificates with respect to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.HRN Master Lease as it may reasonably request;
(h) The Administrative Agent shall have received (i) a copy CLTA 110.5 endorsement to its policy of title insurance assuring the continued priority and perfection of the certificate or articles Deed of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of Trust which is in a recent date by the Secretary of State of the state of its organization, and a certificate as form acceptable to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Administrative Agent;
(i) The Administrative Agent No Default or Event of Default shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) occurred and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement remain continuing and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate to that effect from Borrower; and
(j) A Global Assignment and Release, substantially in the form of Exhibit ID hereto, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence executed by each of the Closing Date)Banks concurrently herewith.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Loan Agreement (Aztar Corp)
Conditions Precedent. Each Lender The conditions referred to in Clause 3.1 are that the Agent shall make have received the Loans to be made by it on the Closing Date subject only following documents and evidence, in all respects in form and substance satisfactory to the following conditions precedent, unless otherwise waived by Agent and its lawyers or such later date as the Lenders in their sole discretionAgent may agree with the Borrowers and the other Security Parties:
(a) This documents of the kind specified in Schedule 3, Part A, paragraphs 3 and 4 of the Loan Agreement shall as amended and supplemented by this Agreement notarised as required and updated with appropriate modifications to refer to this Agreement and, to the extent these have changed since they were last provided to the Agent, documents of the kind specified in Schedule 3, Part A, paragraph 2 of the Loan Agreement or a certificate confirming that these documents remain in full force and effect and have not been duly executed and delivered by modified or amended in any way since the Borrower and each Guarantor.date of their delivery to the Agent;
(b) The Note shall have been a duly executed and delivered original of this Agreement duly executed by the Borrower.Borrowers and the Corporate Guarantor and acknowledge by the other Security Parties;
(c) Each Collateral Document shall have been a duly executed and delivered by each original of the Intercreditor Deed duly executed by the parties thereto.to it;
(d) The Blackstone Consents shall have been duly executed and delivered by each evidence that the process agent referred to in Clause 31.4 of the parties thereto.Loan Agreement has accepted its appointment as agent for service of process under this Agreement;
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each evidence that the provisions of Clause 9.1(d) of the parties thereto.Loan Agreement, as amended and supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement are complied with both as at the date of this Agreement and the Effective Date;
(f) The Administrative favourable legal opinions from lawyers appointed by the Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding on such Loan.
(g) The Administrative Agent shall have received, on behalf matters of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPIslands, special counsel for Liberia or Hong Kong law and any further opinions, consents, agreements and documents in connection with this Agreement, the Loan Parties dated Master Agreement and the Closing Finance Documents which the Agent may reasonably request by notice to the Borrowers prior to the Effective Date;
(g) that both at the Signing Date and addressed to at the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions Effective Date no Event of this kind.Default or Potential Event of Default has occurred; and
(h) The Administrative any other document or evidence as the Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, may request in writing from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to Before this Agreement becomes effective and any party becomes obligated under it, all of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed satisfied at Borrower’s sole cost and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The expense in a manner acceptable to Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case the exercise of their sole judgment:
(a) Administrative Agent and the Lenders shall have received fully executed and, where appropriate, acknowledged originals of this Agreement, and any other documents and agreements which Administrative Agent and the Lenders may require or request in accordance with this Agreement or the other Loan Documents, in form and substance customary for senior secured credit facilities in transactions of this kind.satisfactory to Administrative Agent, which documents and agreements shall include, without limitation, the Consent and Reaffirmation attached hereto executed by Guarantor with respect to the Limited Guaranty;
(hb) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.[reserved];
(i) The Administrative Agent shall have received the results of At least five (x5) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect days prior to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agentdate hereof, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities regarding Borrower requested in connection with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Patriot Act; provided that , to the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered extent requested in writing of Borrower at least 10 ten (10) days prior to the Closing Date date hereof, and are not unduly burdensome on (ii) to the extent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the date hereof, any person unless required by applicable Law.
Lender that has requested, in a written notice to Borrower at least ten (m10) The Lenders days prior to the date hereof, a Beneficial Ownership Certification in relation to Borrower shall have received such Beneficial Ownership Certification (provided that, upon the Unaudited Financial Statements.execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied;
(nd) The Administrative Agent and the applicable Borrower shall have established the Interest Reserve Account.
(o) All amounts required executed an amendment to be paid under Section 2.06 each Security Instrument in form and the BAML Engagement Letter required substance reasonably acceptable to be paid on or before the Closing Date such Borrower and Administrative Agent, which amendment shall have been paid recorded in full (or paid concurrently with the occurrence official records of the Closing Date).county in which the affected Borrowing Base Property is located;
(pe) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed such assurance as Administrative Agent may reasonably require that the validity and priority of each Security Instrument has not been and will not be impaired by Yingli Green Energy Americasthis Agreement or the transactions contemplated by it, Inc. and Canadian Solar including an ALTA 11-06 Endorsement (USA), Inc. or TLTA T-38 Endorsement with respect to their existing liens against any Borrowing Base Property located in the Borrower in form State of Texas) and substance acceptable any other endorsements reasonably required by Administrative Agent to be attached to the policies of title insurance delivered to Administrative Agent in connection with the Security Instruments;
(f) Borrower shall have paid to Administrative Agent an amount sufficient to reduce the outstanding principal balance of the Loan to an amount not to exceed One Hundred Eighty-Four Million Five Hundred Thousand and No/100 Dollars ($184,500,000.00);
(g) Borrower shall have paid to Administrative Agent., for the ratable benefit of each Lender, a modification fee in an amount equal to one-tenth of one percent (0.10%) of the Facility Amount; and
(rh) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien reimbursement, in immediately available funds, of CPF Capital & Tradingall reasonable and documented costs and expenses incurred by Administrative Agent in connection with this Agreement, LLC shall have been filed in the appropriate including charges for title insurance (including endorsements), recording, filing office in form and substance acceptable to the escrow charges, and reasonable and documented legal fees and expenses of Administrative Agent’s and the Lenders’ counsel.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (such date, the “Second Amendment Effective Date”) when each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionprecedent is satisfied:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed (i) counterparts of this Amendment duly executed by the Borrower, the Subsidiary Loan Notice Parties, the Administrative Agent, the Continuing Lenders, the New Lenders and the Departing Lenders, (ii) counterparts of the Reaffirmation Agreement duly executed by the Borrower, the Subsidiary Loan Parties and the Administrative Agent, and (iii) the New Notes, each duly executed by the Borrower in accordance with favor of the requirements hereof at least one day prior to the requested date for funding such Loan.applicable Revolving Lender or Swingline Lender;
(gb) The Administrative Agent (or its counsel) shall have received:
(i) (A) one or more duly executed certificates of the Secretary or an Assistant Secretary of the Borrower and each Loan Party, as the case may be, dated the Second Amendment Effective Date substantially in the form of the certificate(s) delivered pursuant to Section 4.01(b), (c), (n) and (o) of the Existing Credit Agreement attaching (to the extent applicable) the documents referred to therein and containing an incumbency certificate containing the name and signature of any Person executing this Amendment or any other Second Amendment Document on behalf of itselfa Loan Party, (B) a certification of another officer as to the Collateral Agent incumbency and specimen signature of the secretary executing the certificate pursuant to clause (A) above and (C) a certificate as of a recent date as to the good standing of each Loan Party from the Secretary of State of its jurisdiction of organization;
(ii) A duly executed certificate of a Financial Officer of the Borrower dated the Second Amendment Effective Date certifying that:
(1) after giving effect to the provisions hereof the representations and warranties of the Borrower set forth in this Amendment and the Lendersother Loan Documents are true and correct (A) in the case of the representations and warranties qualified as to materiality, an in all respects and (B) otherwise, in all material respects, in each case on and as of the Second Amendment Effective Date;
(2) each of the conditions in Section 4.02 of the Amended Credit Agreement has been satisfied as of the Second Amendment Effective Date;
(3) no Default or Event of Default shall exist on the Second Amendment Effective Date both before and after giving effect to this Amendment; and
(4) no consents, licenses or approvals are required in connection with the execution, delivery and performance by the Borrower and the other Loan Parties, and the validity against the Borrower and the other Loan Parties, of this Amendment and the other Second Amendment Documents to which they are a party.
(iii) A Compliance Certificate duly executed by a Financial Officer of the Borrower demonstrating that the Borrower shall be in compliance with the covenants set forth in Sections 6.12 and 6.13 of the Amended Credit Agreement on a pro forma basis giving effect to this Amendment and the Approved Convertible Debt issued on or about the Second Amendment Effective Date, together with supporting calculations (including the calculation of the Applicable Rate);
(iv) A duly executed certificate of a Financial Officer of the Borrower dated the Second Amendment Effective Date certifying the solvency of the Loan Parties on a consolidated basis;
(v) A completed and duly executed perfection certificate of a Financial Officer of the Borrower dated the Second Amendment Effective Date, together with all attachments contemplated thereby;
(vi) A written opinion of ▇▇▇▇▇▇▇ ▇Faegre Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed Second Amendment Effective Date, reasonably acceptable to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.; and
(hvii) All “Loans” (as defined in the Existing Credit Agreement) of the Departing Lenders outstanding under the Existing Credit Agreement as of the Second Amendment Effective Date, including any accrued interest thereon, and all other fees owed to the Departing Lenders under the Existing Credit Agreement, shall have been paid in full;
(c) The Administrative Agent shall have received (i) a copy of such Lien searches with respect to the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date Parties requested by the Secretary Administrative Agent, the results of State of the state of its organization, which are in form and a certificate as substance satisfactory to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Administrative Agent;
(id) The Borrower shall have paid such fees as shall have been agreed;
(e) The Administrative Agent shall have received the results evidence of (x) searches of the Uniform Commercial Code filings (or equivalent filings) insurance, in form and (y) judgment and tax lien searches, made with respect substance reasonably satisfactory to the Loan Parties in the states or other jurisdictions of formation of such Person Administrative Agent and with respect to such other locations and names provided to its counsel naming the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search its capacity as such, as additional insured and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.lender loss payee;
(jf) The Administrative Agent shall have received a certificate such documentation, in form and substance acceptable to the form of Exhibit IAdministrative Agent and each Lender, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under Administrative Agent or any Lender in connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Patriot Act; provided that the Lenders ;
(g) The Administrative Agent shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior have received, to the Closing Date extent invoiced, reimbursement of all fees and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received expenses of counsel to the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts Administrative Agent required to be paid under Section 2.06 and or reimbursed by the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).Borrower hereunder; and
(p) [intentionally omitted]
(qh) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americassuch other documents, Inc. resolutions, certificates and Canadian Solar (USA)opinions as the Administrative Agent or its counsel may have requested, Inc. with respect to their existing liens against the Borrower all in form and substance acceptable reasonably satisfactory to the Administrative AgentAgent and its counsel.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender In addition, the Agreement shall make the Loans to be made by it on the Closing Date subject only to the following contain customary and usual conditions precedent, unless otherwise waived by including, but not limited to, the Lenders in their sole discretionfollowing:
(ai) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each For a period of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day seventy-five (75) days prior to the requested date for funding Closing Date, as between DIGICORP, on one hand, and RCFINC, on the other, each will afford to the officers and authorized representatives of the other full access to the properties, books and records of each in order that each may have a full opportunity to make such Loan.reasonable investigation as it shall desire to make of the affairs of the other, and each will furnish the other with such additional financial and operating data and other information as to the business and properties of each (the confidentiality of which each agrees to retain) as each shall from time to time reasonably request. Any such investigation and examination shall be conducted at reasonable times and under reasonable circumstances, and each Party hereto shall cooperate fully therein. In order that each may investigate as it may wish the business affairs of the other, each shall furnish the other during such period with all such information and copies of such documents concerning the affairs of each as the other may reasonably request, and cause its officer, employees, consultants, agents, accountants, and attorneys to cooperate fully in connection with such review and examination, and to make full disclosure to the other all material facts affecting the financial condition, business operations, and the conduct of operations of each;
(gii) The Administrative Agent shall have receivedDIGICORP, on behalf Jay Rifkin and certain other shareholders of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇DIGIC▇▇▇ ▇▇▇▇▇▇ing but not limited to the shareholders listed on Annex C (to be specified by the Parties prior to Closing) shall enter into a voting agreement authorizing Mr. Rifkin to vote the shares of DIGICORP Common S▇▇▇▇ & ▇▇▇▇▇ by parties to such voting agreement on certain matters including, but not limited to, amendments to DIGICORP's articles of incorporation, the sale of substantially all of DIGICORP's assets, any other material transactions and other matters which may be specified by the Parties in the Agreement and prior to Closing;
(iii) DIGICORP shall enter into a three-year employment agreement with Jay Rifkin, whereby Mr. Rifkin will serve as chief ▇▇▇▇▇▇▇▇▇ LLPofficer o▇ ▇▇▇▇▇▇▇▇ with an initial salary of $150,000 per year and options entitling Mr. Rifkin to purchase 4,400,000 shares of DIGICOR▇ ▇▇▇▇▇▇ ▇tock which shall be granted at the FMV of DIGICORP common stock on the date of execution of this LOI, special counsel for the Loan Parties dated will vest annually over a period of three years from the Closing Date and, shall be exercisable either for cash, or, unless prohibited by applicable law or the stock option and addressed restricted stock plan to be adopted by DIGICORP, through the delivery of shares of DIGICORP already owned by Mr. Rifkin or shares subject to the Administrative Agentoption being e▇▇▇▇▇▇▇▇, valued at the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect fair market value on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of delivery. At the last amendment thereto shown on the certificate sole discretion of the Secretary of State furnished pursuant Mr. Rifkin, such options shall be either non-quali▇▇▇▇ ▇▇▇▇▇ options or incentive stock options and issued from DIGICORP's stock option and restricted stock plan to clause (i) above, be adopted by DIGICORP. Mr. Rifkin's employment agreement shall also inclu▇▇ ▇▇▇▇▇ ▇▇▇ms to be negotiated in good faith between DIGICORP and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Mr. Rifkin;
(iiv) The Administrative Agent At Closing, DIGICORP's board of direc▇▇▇▇ ▇▇▇▇▇ consist of five persons. Milton "Todd" Ault, III shall have received the results of (x) searches of the Uniform Commercial Code filings (designate or equivalent filings) elect t▇▇ ▇▇ th▇ ▇▇ve ▇▇▇rd members, which shall initially be William B. Horne and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.Alice M.
Appears in 1 contract
Sources: Letter of Intent (Digicorp)
Conditions Precedent. Each Lender The amendments, consents and other agreements contained herein shall make only be effective upon the Loans to be made satisfaction or waiver by it on the Closing Date subject only to Administrative Agent and Consenting Lenders of each of the following conditions precedentprecedent (the date of such satisfaction or waiver, unless otherwise waived by the Lenders in their sole discretion:“Seventh Amendment Effective Date”):
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice copy of this Amendment in accordance with the requirements hereof at least one day prior form and substance reasonably acceptable to the requested date for funding such Loan.
(g) The Administrative Agent shall have receivedAgent, on behalf of itselfduly executed by the Borrower and each other Loan Party, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and Lenders sufficient to constitute Required Lenders;
(b) payment of all fees required to be paid to the LendersAdministrative Agent and the Lenders on or before the Seventh Amendment Effective Date, and all expenses in connection with this Amendment required to be reimbursed in accordance with Section 10.04 of the Credit Agreement, in each case in form and substance customary for senior secured credit facilities in transactions case, to the extent invoiced or otherwise documented no later than the date that is two (2) Business Days prior to the Seventh Amendment Effective Date or, if Borrower fails to provide at least three (3) Business Days prior notice of this kind.the desired Seventh Amendment Effective Date, no later than the date that is on or before the Seventh Amendment Effective Date;
(hc) The the Administrative Agent shall have received (i) a copy copies of the certificate or articles of incorporation or organizationcomplete, fully executed fourth amendment to the Term Loan Agreement, in form and substance satisfactory to the Administrative Agent and the Lenders (the “Term Loan Fourth Amendment”), including all amendments schedules, annexes and exhibits thereto, of and each Loan Party and Project Companyother material document, certified, if applicable, as of a recent date agreement or instrument entered into by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in connection with the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Term Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.Fourth Amendment;
(jd) The Administrative Agent shall have received a certificate in no order, injunction or judgment has been entered into prohibiting the form closing of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.this Amendment;
(ke) On the Closing Date, the representations and warranties made by the Loan Parties set forth in Article V Section 6 of this Amendment shall be true and correct in all material respects.correct; and
(lf) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating of the lien appointment of CPF Capital & Trading, LLC shall have been filed the CTO substantially simultaneously with the effectiveness of this Amendment and otherwise upon the terms and conditions set forth in Section 6.26(h) of the appropriate filing office in form and substance acceptable to the Administrative AgentCredit Agreement.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall make The effectiveness of this Amendment is subject to the Loans to be made by it on the Closing Date subject only to satisfaction of all of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 2.1. The Administrative Agent shall have received a Committed this Amendment duly executed by the Borrower, the Guarantors (the Borrower and the Guarantors, including the New Guarantors being referred to herein as the “Loan Notice in accordance with Parties”), and the requirements hereof at least one day prior to Lenders (including the requested date for funding such LoanNew Lenders).
(g) 2.2. The Administrative Agent shall have receivedreceived an Assumption and Supplement to Amended and Restated Security Agreement duly executed by the New Guarantors, on behalf of itself, the Collateral Agent in form and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed substance reasonably satisfactory to the Administrative Agent.
2.3. If requested by any Lender, the Collateral Administrative Agent shall have received for such Lender such Lender’s duly executed Revolving Note of the Borrower dated the date hereof and otherwise in compliance with the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions provisions of this kindSection 2.10 of the Credit Agreement.
(h) 2.4. The Administrative Agent shall have received (i) a copy copies of the certificate or articles of incorporation or organization, including all each New Guarantor’s organizational documents and any amendments thereto, of certified in each Loan Party and Project Company, certified, if applicable, as of a recent date instance by the its Secretary of State of the state of its organization, and a certificate as to the good standing or Assistant Secretary (where relevantor comparable Responsible Officer) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary certification by a Responsible Officer of each Loan Party dated (other than the Closing Date and certifying (ANew Guarantors) that attached thereto is a true the organizational documents of such Loan Party previously delivered to the Administrative Agent shall not have been amended, restated, supplemented or otherwise modified since the date on which such organizational documents were delivered to the Administrative Agent and complete copy are in full force and effect as of the by-laws or operating (or limited liability company) agreement date hereof.
2.5. The Administrative Agent shall have received copies of resolutions of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy Party’s Board of resolutions duly adopted by the board of directors Directors (or equivalent similar governing body) of each Loan Party authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which such Person it is a party and, in and the case consummation of the Borrowertransactions contemplated hereby and thereby, together with specimen signatures of the borrowings hereunderpersons authorized to execute such documents on each Loan Party’s behalf, and that such resolutions all certified in each instance by its Secretary or Assistant Secretary (or comparable Responsible Officer).
2.6. The Administrative Agent shall have not been modifiedreceived copies of the certificates of good standing for each Loan Party (dated no earlier than 30 days prior to the date hereof), rescinded or amended and are in full force and effect, (C) that from the certificate or articles office of the secretary of the state of its incorporation or organization organization.
2.7. The Administrative Agent, for itself and on behalf of the Lenders, shall have received the fees set forth in that certain letter dated as of August 13, 2019, between the Borrower and the Administrative Agent.
2.8. The Administrative Agent shall have received search results against each Loan Party and Project Company have not been amended since its Property evidencing the date absence of Liens thereon except as permitted by Section 8.8 of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveCredit Agreement.
(i) 2.9. The Administrative Agent shall have received the results favorable written opinion of (x) searches of the Uniform Commercial Code filings (or equivalent filings) counsel to each Loan Party, in form and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided substance reasonably satisfactory to the Administrative Agent, together with (in the case of clause (y)) copies .
2.10. Each of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information requested by any such Lender required by bank regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money anti‑money laundering rules and regulations, including without limitation limitation, the USA PATRIOT ActUnited States Patriot Act (Title III of Pub. L. 107‑56 (signed into law October 26, 2001)) including, without limitation, the information described in Section 13.19; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly fully executed funds flow memorandum in form and substance acceptable to the Administrative AgentInternal Revenue Service Form W‑9 (or its equivalent) for each Loan Party.
Appears in 1 contract
Sources: Credit Agreement (Envestnet, Inc.)
Conditions Precedent. Each Lender This Amendment shall make the Loans to not be made by it on the Closing Date subject only to the following conditions precedent, effective unless otherwise waived by the Lenders in their sole discretionand until:
(a) This Agreement shall Administrative Agent receives:
(i) fully executed counterparts of this Amendment signed by the Loan Parties and the Credit Parties;
(ii) an officer’s certificate executed by a Responsible Officer of each Loan Party certifying (i) the Organization Documents of such Loan Party or that there have been duly executed no changes to such Organization Documents since August 28, 2013, (ii) authorizing resolutions of such Loan Party authorizing the transactions contemplated by this Amendment, and delivered by the Borrower and each Guarantor.(iii) incumbency of officers of such Loan Party authorized to execute this Amendment;
(biii) The Note shall have been duly executed certificates of existence and delivered by the Borrower.good standing for each Loan Party; and
(civ) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties, addressed to Administrative Agent and each Lender, as to such matters concerning the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.request;
(jb) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by in the Credit Agreement and each other Loan Parties in Article V shall be Document are true and correct in all material respects.respects on and as of the date of this Amendment as though made as of the date of this Amendment except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) that the representations and warranties in subsections (a), (b) and (c) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b) of Section 7.01, and (iii) to the extent that the facts on which any of them were based have been changed by transactions contemplated or permitted by the Credit Agreement;
(lc) The Lenders shall have received all documentation and other information required by regulatory authorities with respect after giving effect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsthis Amendment, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.no Default exists;
(md) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established paid Administrative Agent all fees and expenses payable to Administrative Agent and the Interest Reserve Account.Lenders in connection with this Amendment; and
(oe) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date The Existing Facility Documents shall have been paid in full (or paid concurrently with amended to permit the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed increase in the appropriate filing office in form and substance acceptable Aggregate Commitments pursuant to the Administrative Agentthis Amendment.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender Section 2 and Section 3 hereof shall make the Loans to be made by it become effective on the Closing Date subject only to date (the following conditions precedent, unless otherwise waived by “Twelfth Amendment Effective Date”) when the Lenders in their sole discretionAdministrative Agent shall have received:
(a) This Agreement shall have been duly executed and delivered by from each party hereto either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Borrower and each Guarantor.Administrative Agent (which may include telecopy or electronic transmission of a signed signature page to this Amendment) that such party has signed a counterpart of this Amendment; and
(b) The Note shall have been duly executed a customary favorable written opinion (addressed to the Administrative Agent and delivered by the Borrower.Lenders and dated as of the Twelfth Amendment Effective Date) of counsel for the Obligors, in form and substance reasonably acceptable to the Administrative Agent (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent);
(c) Each Collateral Document shall have been duly executed such documents and delivered by each certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the parties thereto.Obligors, the authorization of this Amendment and the transactions contemplated hereby and any other legal matters relating to the Obligors, this Amendment or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel;
(d) The Blackstone Consents shall have been duly executed and delivered by each a Borrowing Base Certificate showing a calculation of the parties thereto.Borrowing Base as of the Twelfth Amendment Effective Date; and
(e) The Closing Date Subordination Agreements shall have been duly executed evidence of payment by the Borrower of any fees and delivered expenses due and owing by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed Borrower to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Datedate hereof.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.)
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date (i) The effectiveness of this Amendment is subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:to
(a) This Agreement shall have been receipt by the Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent:
(1) A counterpart of this Amendment duly executed and delivered by the Borrower Borrowers, the Administrative Agent and the Required Lenders;
(2) Fully executed copies of the following, each Guarantorof which shall be in form and substance reasonably satisfactory to the Administrative Agent: (i) Amendment No. 5 to Note Purchase Agreement (2011), dated the date hereof, by and among the Borrowers and the holders party thereto, with respect to the Note Purchase Agreement dated as of August 5, 2011, among LSI, LSLP and the several Purchasers identified therein, as amended to date; (ii) that certain Amendment No. 4 to Note Purchase Agreement (2014), dated the date hereof, by and among the Borrowers and the holders party thereto, with respect to the Note Purchase Agreement dated as of April 8, 2014, among LSI, LSLP and the several Purchasers identified therein, as amended to date; and (iii) that certain Amendment No. 1 to Note Purchase Agreement (2016), dated the date hereof, by and among the Borrowers and the holders party thereto, with respect to the Note Purchase Agreement dated as of July 21, 2016, among LSI, LSLP and the several Purchasers identified therein;
(3) Such other documents, instruments and agreements as the Administrative Agent may reasonably request.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by of the Loan Parties Borrowers set forth in Article V Section 3 hereof shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation on and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence as of the Closing Date)effective date of this Amendment.
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Life Storage Lp)
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion obligation of ▇▇▇▇▇▇ to make the Loan is subject to the following conditions precedent:
▇. ▇▇▇▇▇▇ shall have received, reviewed, and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more Authorized Officers of LEI, all in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ & :
i. multiple counterparts of this Agreement as requested by ▇▇▇▇▇▇;
ii. the Note;
iii. a certificate of the secretary or any assistant secretary of LEI dated the date of this Agreement, certifying (1) incumbency and specimen signatures of all officers or other representatives of LEI who are authorized to execute Loan Documents on behalf of LEI; (2) attached true, correct, and complete copies of each of the resolutions adopted by the Board of Directors of LEI approving the Loan Documents and authorizing the transactions contemplated in this Agreement and in the Loan Documents, duly adopted at a meeting or by unanimous consent and certifying that the resolutions constitute all the resolutions adopted with respect to these transactions, that they have not been amended, modified, or rescinded in any respect, and that they are in full force and effect as of the date of this Agreement; (3) attached true, correct and complete copies of the organizational documents of LEI and all amendments to them as in effect as of the date of this Agreement; and (4) attached certificates from the appropriate government officials as to the existence and good standing of LEI, each dated not more than 30 days prior to the date of this Agreement, from LEI’s state of organization, and certificates as to LEI’s qualification as a foreign entity and good standing from each other jurisdiction in which a Mortgage is being delivered by LEI pursuant to this Section 5(a);
iv. the following documents establishing Liens in favor or for the benefit of ▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date in and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.Collateral:
(h1) The Administrative Agent shall have received Mortgage Deed of Trust, Assignment, Security Agreement, Financing Statement and Fixture Filing from LEI covering all Oil and Gas Properties of LEI and all improvements, personal property, and fixtures related to them;
(i2) a copy Security Agreement from LEI covering all personal property of LEI;
(3) Financing Statements naming LEI as debtor constituent to the certificate or articles of incorporation or organizationdocuments described in clauses (1) and (2) above (including, including all amendments theretowithout limitation, of each Loan Party and Project Company, certified, if applicable, as of a recent date by Financing Statements constituent to the Security Agreement to be filed with the Secretary of State of the state States of its organizationNevada and Texas); and
(4) undated letters, in form and a certificate as substance reasonably satisfactory to ▇▇▇▇▇▇, from LEI to each purchaser of production and disburser of the proceeds of production from or attributable to the good standing (where relevant) Mortgaged Properties, with the addressees left blank, authorizing and directing the addressees to make future payments attributable to production from the Mortgaged Properties directly to ▇▇▇▇▇▇;
v. results of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate search of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate UCC Records of the Secretary of State furnished pursuant to clause (i) aboveof Nevada, and (D) the search report shall be from a source or sources acceptable to ▇▇▇▇▇▇ and reflecting no Liens, other than Liens permitted by Section 8(e), against any of the Collateral Property as to which perfection of a Lien is accomplished by the incumbency and specimen signature filing of each officer executing any Loan Document on behalf a financing statement;
vi. confirmation, reasonably acceptable to ▇▇▇▇▇▇, of any Loan Party and countersigned by another officer as the title of LEI to the incumbency Mortgaged Property, free and specimen signature clear of the Secretary Liens other than Liens permitted by Section 8(e);
vii. receipt by ▇▇▇▇▇▇ of a Phase I environmental report on or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated before ninety days after the Closing Date that the Oil and signed by the Chief Financial Officer Gas Properties of BorrowerLEI are in compliance, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects., with applicable Environmental Laws;
(l) The Lenders shall have received viii. copies of executed counterparts of all documentation operating, lease, sublease, royalty, sales, exchange, processing, farmout, bidding, pooling, unitization, communitization, and other information required by regulatory authorities with respect agreements relating to the Borrower Mortgaged Property, as reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.▇▇▇▇▇▇;
Appears in 1 contract
Sources: Loan Agreement (Lucas Energy, Inc.)
Conditions Precedent. Each Lender This Fourth Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (such date, the “Fourth Amendment Effective Date”), when each of the following conditions precedent, unless otherwise is satisfied (or waived by in accordance with Section 9.02 of the Lenders in their sole discretion:Credit Agreement):
3.1 The Administrative Agent (or its counsel) shall have received from each party hereto either (a) This a counterpart of this Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
signed on behalf of such party or (b) The Note shall have been duly executed and delivered by written evidence satisfactory to the BorrowerAdministrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 3.2 The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior favorable written opinion (addressed to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion Lenders and dated the Fourth Amendment Effective Date) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special outside counsel for the Loan Parties dated the Closing Date and addressed Borrower. The Borrower hereby requests such counsel to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kinddeliver such opinion.
(h) 3.3 The Administrative Agent shall have received (i) a copy of such documents and certificates as the certificate Administrative Agent or articles of incorporation or its counsel may reasonably request relating to the organization, including all amendments thereto, of each Loan Party existence and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, authorization of this Fourth Amendment and that such resolutions have not been modified, rescinded or amended the transactions contemplated hereby and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as any other legal matters relating to the incumbency Borrower, this Agreement or such transactions, all in form and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided substance satisfactory to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search Agent and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirementits counsel.
(j) 3.4 The Administrative Agent shall have received a certificate in the form of Exhibit Icertificate, dated the Closing Fourth Amendment Effective Date and signed by the Chief President, a Vice President or a Financial Officer of the Borrower, certifying that Borrower confirming compliance with the conditions set forth in paragraphs (a) and its Subsidiaries, on a consolidated basis, are Solvent as (b) of Section 4.02 of the Closing DateCredit Agreement.
(k) On the Closing Date3.5 The Administrative Agent, the representations Lenders and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders Arrangers shall have received all documentation fees and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” amounts due and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days payable on or prior to the Closing Date and are not unduly burdensome on any person unless Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower hereunder. Without limitation of the foregoing, the Borrower shall have established paid to each Lender, for the Interest Reserve Accountaccount of such Lender, the following upfront fees:
(a) 50 basis points on the amount of such Lender’s final allocated commitment which is in excess of such Lender’s commitment under the Credit Agreement as in effect immediately prior to the Fourth Amendment Effective Date; and
(b) 20 basis points on the amount of such Lender’s final allocated commitment to the extent equal to or less than such Lender’s commitment under the Credit Agreement as in effect immediately prior to the Fourth Amendment Effective Date.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) 3.6 The Administrative Agent shall have received estoppel letters duly executed an original promissory note as contemplated by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against Section 2.09(e) of the Borrower in form and substance acceptable Credit Agreement for each Lender that has notified the Administrative Agent prior to the Administrative Agent.
(r) Effective Date that such Lender requests such note. The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating notify the lien Borrower and the Lenders of CPF Capital & Tradingthe Fourth Amendment Effective Date, LLC and such notice shall have been filed be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless such notice is given at or prior to 3:00 p.m., New York City time, on March 31, 2015 (and, in the appropriate filing office in form and substance acceptable to event such conditions are not so satisfied or waived, the Administrative AgentCommitments shall terminate at such time).
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective (the Loans to be made by it on “Effective Date”) upon the Closing Date subject only satisfaction of the following:
5.1 Payment to the Agent, for the benefit of the Managing Agent of each Investor Group, on behalf of the Investors in such Investor Group, of an extension fee in an amount equal to the product of (A) 0.05% and (B) the Commitment of the Committed Investors in such Managing Agent’s Investor Group immediately after giving affect to this Amendment.
5.2 The Agent shall have received, counterparts of each of the following conditions precedentdocuments, unless otherwise waived by the Lenders each in their sole discretionform and substance satisfactory to Agent:
(a) This Agreement shall have been A duly executed counterpart (or counterparts) of: (i) this Amendment, (ii) the Amendment No. 1 to Third Amended and Restated Sale Agreement, dated as of the date hereof, among the Originators and the SPV, (iii) the Fourth Amended and Restated Guaranty, dated as of the date hereof, delivered by ▇▇▇▇▇, Inc. to the Borrower Persons named therein in relation to the obligations of the Originators and each Guarantorthe Servicer under the Transaction Documents, (iv) the Second Amended and Restated Notice Letter Agreement, dated as of the date hereof, among the SPV, the Originators, BANA, MUFG, GFC, TDB, CTCC and GTA, and (v) the Amended and Restated Disclosure Letter, dated as of the date hereof, among the SPV, the Originators, BANA, MUFG, GFC, TDB, CTCC and GTA.
(b) The Note shall have been A duly executed counterpart (or counterparts) of the Instrument of Assumption and delivered by the BorrowerJoinder for each New Originator.
(c) Each Collateral Document shall have been duly executed A certificate of the secretary or assistant secretary of each New Originator certifying and attaching as exhibits thereto, among other things:
i. the articles of incorporation or other organizing document of each New Originator (certified by the Secretary of State or other similar official of its jurisdiction of incorporation or organization, as applicable, as of a recent date);
ii. the by-laws or operating agreement, as applicable, of each New Originator;
iii. resolutions of the board of directors or other governing body of each New Originator authorizing the execution, delivery and performance by it of this Agreement, the First Tier Agreement and the other Transaction Documents to be delivered by it hereunder or thereunder and all other documents evidencing necessary corporate action (including shareholder consents) and government approvals, if any; and
iv. the incumbency, authority and signature of each officer of each New Originator executing the parties theretoTransaction Documents or any certificates or other documents delivered hereunder or thereunder on its behalf.
v. A good standing certificate for each New Originator issued by the Secretary of State or a similar official of its jurisdiction of incorporation or organization, as applicable, dated as of a recent date.
(d) The Blackstone Consents shall have been duly executed and delivered by Acknowledgment copies or other evidence of filing acceptable to the Agent of proper financing statements, naming each New Originator, as the debtor, in favor of the parties theretoSPV, as assignor secured party, and the Agent, for the benefit of the Secured Parties, as assignee secured party, or other similar instruments or documents as may be necessary or in the reasonable opinion of the Agent desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the SPV’s ownership interest in all Receivables and the other Affected Assets.
(e) The Closing Date Subordination Agreements shall have been duly executed Copies of proper financing statements necessary to terminate all security interests and delivered other rights of any Person in Receivables or the other Affected Assets previously granted by each of the parties theretoNew Originator.
(f) The Administrative Agent shall have received Certified copies of requests for information or copies (or a Committed Loan Notice in accordance with the requirements hereof at least one day prior similar search report certified by parties acceptable to the requested Agent) dated a date for funding reasonably near the Closing Date listing all effective financing statements which name each New Originator as debtor and which are filed in jurisdictions in which the filings were made pursuant to clause (d) above and such Loanother jurisdictions where the Agent may reasonably request, together with copies of such financing statements, and similar search reports with respect to federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions.
(g) The Administrative Agent shall have receivedExecuted copies of Blocked Account Agreement and applicable amendments to Blocked Account Agreements relating to each of the Blocked Accounts of each New Originator as required by the Agent.
(h) A favorable opinion of ▇▇▇▇ ▇. ▇▇▇▇▇, on behalf General Counsel of itself▇▇▇▇▇, Inc., covering certain corporate matters with respect to each New Originator and the Collateral SPV in form and substance satisfactory to the Agent and the Lenders, an Agent’s counsel.
(i) A favorable opinion of ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇and ▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent SPV and the LendersOriginator, in each case covering certain corporate and UCC matters in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as satisfactory to the good standing (where relevant) of each Loan Party Agent and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement’s counsel.
(j) The Administrative A favorable bring-down opinion of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, special counsel to the SPV and each New Originator, covering certain bankruptcy and insolvency matters in form and substance satisfactory to the Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing DateAgent’s counsel.
(k) On An electronic file identifying all Receivables and the Closing Date, Unpaid Balances thereon and such other information with respect to the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respectsReceivables as any Managing Agent may reasonably request.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulationsA Servicer Report, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawdated as of April 28, 2023.
(m) The Lenders shall have received Such other approvals, documents, instruments, certificates and opinions as the Unaudited Financial StatementsAgent, any Managing Agent, any Administrator or any Investor may reasonably request.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender It shall make the Loans to be made by it on the Closing Date subject only a condition precedent to the following conditions precedentparties entering into each Transaction, unless otherwise waived by under this Agreement that Purchaser receives the Lenders in their sole discretionfollowing:
(ai) This Agreement shall have been duly executed a certificate of a Responsible Officer attaching certified copies of Seller’s certificate of formation, operating agreement and delivered by resolutions of Seller’s board of directors authorizing the Borrower and each Guarantor.transactions contemplated hereby;
(bii) The Note shall have been duly executed a certificate of incumbency of authorized representatives which sets forth the names, titles and delivered true signatures of all of those individuals authorized to execute any document or instrument contemplated by this Agreement and the Borrower.Custodial Agreement;
(ciii) Each Collateral Document shall have been duly an opinion of counsel of the Seller, (A) in the form of Exhibit D or such other form as the Purchaser may accept (including a non-contravention, enforceability and corporate opinion with respect to Seller); (B) an opinion with respect to the inapplicability of the Investment Company Act of 1940 to Seller and (C) a true sale opinion; each in form and substance acceptable to Purchaser;
(iv) the Program Documents fully executed and delivered by each of the parties thereto.; and
(dv) The Blackstone Consents shall have been duly executed and delivered such other documents reasonably requested by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind▇▇.
(ha) The Administrative Agent It shall have received be a condition precedent to the parties entering into additional Transactions, under this Agreement that: LEGAL02/46557502v3
(i) Purchaser receives a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of Takeout Commitment covering in the aggregate a recent date by the Secretary of State of the state of its organization, and a certificate as Takeout Amount equal to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and Agency Security Face Amount;
(ii) a certificate of Purchaser receives the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing DateTakeout Commitment Assignment(s), (B) that attached thereto is a true and complete copy of resolutions duly adopted executed by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent▇▇▇▇▇▇, together with appropriate instructions sufficient to ensure that Purchaser can obtain the consent of each Takeout Buyer to the assignment of the Takeout Commitment;
(in the case of clause (y)iii) Purchaser receives such copies of the financing statements relevant Pooling Documents (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement originals of which shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (xthe Agency) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments as Purchaser may request from time to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.time;
(jiv) The Administrative Agent shall have received Purchaser receives a certificate letter from any warehouse lender having a security interest in the Mortgage Loans, addressed to Purchaser, releasing any and all right, title and interest in such Mortgage Loans, substantially in the form of Exhibit I, dated an exhibit to the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as Custodial Agreement;
(v) Purchaser receives an electronic copy of the Closing Date.original Participation Certificate fully completed by Seller and authenticated by Custodian;
(kvi) On no Servicing Termination Event or Potential Servicing Termination Event shall have occurred and be continuing under the Closing DateProgram Documents and under the Master Repurchase Agreement;
(vii) Purchaser receives an electronic data file for each Transaction, including all fields set forth on Exhibit B hereto;
(viii) the representations and warranties made by the Loan Parties in Article V Seller shall be true true, correct and correct complete on and as of such Purchase Date in all material respects.respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(lix) The Lenders after giving effect to the requested Transaction, the aggregate outstanding Purchase Price for all Mortgage Loans subject to Outstanding Transactions under this Agreement shall not exceed the Maximum Purchase Price;
(x) there shall have received all documentation and other information required by regulatory authorities with respect been no Material Adverse Effect on the financial condition of Seller since the most recent financial statements of Seller were delivered to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActPurchaser; provided that the Lenders shall use commercially reasonable efforts to ensure that and
(xi) such requests are delivered Purchase Date occurs at least 10 days [***] prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawrelated Settlement Date.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Mortgage Loan Participation Sale Agreement (loanDepot, Inc.)
Conditions Precedent. Each Lender This Amendment shall make only be effective upon the Loans to be made satisfaction or waiver by it on the Closing Date subject only to Administrative Agent and the Lenders of each of the following conditions precedentprecedent (the date of such satisfaction or waiver, unless otherwise waived by the Lenders in their sole discretion:“Sixth Amendment Effective Date”):
(a) This Agreement the Administrative Agent shall have been received (unless otherwise specified) each of the following documents or instruments each of which shall be originals, facsimiles or other electronic transmission (in the case of facsimiles or other electronic transmission followed promptly by originals) unless otherwise specified, in form and substance reasonably acceptable to the Administrative Agent:
(i) this Amendment, duly executed and delivered by the Borrower Loan Parties, the Administrative Agent and each Guarantor.Lender;
(bii) The Note shall have been that certain Sixth Amendment Fee Letter (the “Sixth Amendment Fee Letter”), dated as of the date hereof, duly executed and delivered by the Borrower.Lead Borrower and the Administrative Agent;
(ciii) Each Collateral Document shall have been that certain Confirmation, Ratification and Acknowledgement of Ancillary Loan Documents, dated as of the date hereof, duly executed and delivered by each the Loan Parties and the Administrative Agent;
(iv) that certain First Amendment to Term Loan Credit Agreement, dated as of the parties thereto.
(d) The Blackstone Consents shall have been date hereof, duly executed and delivered by each the Loan Parties, TopLids LendCo, LLC, a Delaware limited liability company (the “Term Agent”), and Vital FundCo, LLC, a Delaware limited liability company;
(v) that certain Mutual Consent and Agreement, dated as of the parties thereto.date hereof, by and among the Term Agent and the Administrative Agent, and acknowledged by the Loan Parties;
(evi) The Closing Date Subordination Agreements shall have been a favorable legal opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to such matters concerning the Loan Parties, this Amendment, and any other Loan Documents delivered in connection herewith as the Administrative Agent may reasonably request;
(vii) that certain letter agreement relating to Specified Events, dated as of the date hereof, by and among the Lead Borrower and the Administrative Agent;
(viii) results of (i) searches of the UCC filings (or equivalent filings) and (ii) judgment, tax, and bankruptcy lien searches, made with respect to the Loan Parties in, with respect to searches in respect of clause (i), the states or other jurisdictions of formation of such Persons and, with respect to searches in respect of clause (ii), such other locations as are satisfactory to the Administrative Agent, together with copies of the financing statements (or, in the case of clause (ii), similar documents) disclosed by such searches;
(ix) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents; 11271401
(x) that certain Engagement Letter, dated as of August 26, 2022, duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent Parties and the Lenders, an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPCapital, special counsel for Inc. (and as amended by that certain First Amendment to Engagement Letter, dated as of March 3, 2023), reflecting compliance with the requirements of Section 6.19(a) of the Amended Credit Agreement;
(xi) a certificate from a Responsible Officer of each Loan Parties Party, in form and substance reasonably satisfactory to the Administrative Agent and dated as of the Closing Date Sixth Amendment Effective Date, certifying as being true, correct and addressed complete, copies attached thereto (certified by a governmental official, where applicable) of: (w) good standings in such entities’ jurisdiction of organization and primary place of business/chief executive office, (x) current, certified charters or certificates of formation and bylaws, limited liability company agreements or other applicable organizational documents, (y) resolutions or other corporate action with respect to the Sixth Amendment Transactions and (z) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Amendment
(xii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Collateral Solvency of the Loan Parties on a consolidated basis as of the Sixth Amendment Effective Date after giving effect to the transactions contemplated hereby; and
(b) the Lead Borrower shall have paid all invoiced and accrued fees and reasonable and documented expenses of the Administrative Agent in respect of this Amendment (including but not limited to (i) the reasonable and documented fees and expenses of counsel for the Administrative Agent in respect of this Amendment and (ii) the fees described in the Sixth Amendment Fee Letter);
(c) the Lead Borrower shall have paid to the Administrative Agent and the Lenders, Lenders all fees and expenses due and payable on or before the Sixth Amendment Effective Date (including but not limited to those fees contained in each case the Sixth Amendment Fee Letter and all expenses in form and substance customary for senior secured credit facilities connection with this Amendment required to be reimbursed in transactions accordance with Section 10.04 of this kind.the Amended Credit Agreement);
(hd) The no order, injunction or judgment has been entered into prohibiting the closing of the Amendment;
(e) no Default or Event of Default shall have occurred or be continuing; and
(f) all representations and warranties contained in this Amendment (including those made in Section 3 hereof) are true and correct on and as of the Sixth Amendment Effective Date. For purposes of determining compliance with the conditions specified in this Section 2, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, written notice from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days Lender prior to the Closing proposed Sixth Amendment Effective Date and are not unduly burdensome on any person unless required by applicable Lawspecifying its objection thereto.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective only upon satisfaction of the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionfollowing:
(a) This Agreement Administrative Agent shall have been received this Amendment, duly executed and delivered by the Borrower Borrowers, Guarantors and each Guarantor.Lenders;
(b) The Note Administrative Agent shall have been received the Addendum, duly executed and delivered by the Borrower.Borrowers, Guarantors, LC Issuer, Swingline Lender and Lenders;
(c) Each Collateral Document Administrative Agent shall have been received amended and restated Notes, duly executed and delivered by Borrowers, for each Lender that has requested the issuance of the parties thereto.a Note;
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have receivedcertificate, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities satisfactory to it, from a knowledgeable Responsible Officer of each Loan Party certifying, as of the Third Amendment Effective Date, (i) that such Loan Party is Solvent; (ii) that no Default or Event of Default exists; (iii) that the representations and warranties set forth in transactions the Loan Documents are true and correct, subject to Section 5 of this kind.Amendment; and (iv) as to such other matters reasonably requested by Administrative Agent in connection herewith;
(he) The Administrative Agent shall have received a certificate of a duly authorized officer of each Loan Party, certifying (i) a copy of the certificate that such Loan Party's Organizational Documents are in full force and effect and have not been amended or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on otherwise modified since the Closing Date, except as attached; (Bii) that an attached thereto is a true and complete copy of resolutions duly adopted by authorizing execution and delivery of this Amendment and the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the other Loan Documents to which such Person executed in connection herewith is a party and, in the case of the Borrower, the borrowings hereundertrue and complete, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that were duly adopted by the certificate or articles of incorporation or organization of each Loan Party and Project Company appropriate governing body, have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) aboveamended, modified, or revoked, and constitute all resolutions adopted with respect to this Amendment and the other Loan Documents executed in connection herewith; and (Diii) as to the incumbency title, name, and specimen signature of each officer executing any Person authorized to sign the Amendment and the other Loan Document Documents executed in connection herewith on behalf of any such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.Party;
(if) The Administrative Agent shall have received the results of all other documents, instruments, certificates and agreements (xif any) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The as Administrative Agent shall have received a certificate reasonably requested in connection with the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.foregoing; and
(kg) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders Borrowers shall have received paid all documentation fees and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required expenses to be paid under Section 2.06 to Administrative Agent and Lenders on the BAML Engagement Letter required Third Amendment Effective Date (including pursuant to be paid on the Third Amendment Fee Letter) or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. be satisfied with all arrangements made to pay such fees and Canadian Solar (USA), Inc. expenses on the Third Amendment Effective Date with respect the proceeds of Loans to their existing liens against be made on the Borrower in form and substance acceptable to the Administrative AgentThird Amendment Effective Date.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Freds Inc)
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (the “Amendment Effective Date”) that each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionare satisfied or waived:
(a) This Agreement The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (as applicable), and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party hereto:
(i) counterparts of this Amendment duly executed by (A) each Loan Party and (B) each Lender party hereto, which shall constitute the Required Lenders collectively; and
(ii) a certificate signed by a Responsible Officer of Holdings certifying (A) that the conditions specified in this Section 3 have been duly executed satisfied (other than any such conditions as are subject to the judgment or discretion of the Administrative Agent or any Lender), (B) both before and immediately following the consummation of the transactions contemplated by this Amendment, no Default or Event of Default has occurred and is continuing, (C) the issuance of the 2014 Convertible Notes has occurred as of such date and Holdings has received gross proceeds therefrom in an aggregate amount of not less than $1,000,000,000, and (D) a calculation of the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of Holdings most recently ended prior to the Amendment Effective Date for which financial statements have been delivered by to the Borrower and each GuarantorAdministrative Agent, giving pro forma effect to the issuance of the 2014 Convertible Notes.
(b) The Note shall have been duly executed representations and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each warranties of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy the Borrowers contained in Article V of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority Credit Agreement and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date contained in this Amendment and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any other Loan Document on behalf of or in any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary document furnished at any time under or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (in connection herewith or equivalent filings) and (y) judgment and tax lien searchestherewith, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects (except that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the date hereof and the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of such earlier date.
(lc) The Lenders issuance of the 2014 Convertible Notes shall have been consummated, and Holdings shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are gross proceeds therefrom in an aggregate amount of not unduly burdensome on any person unless required by applicable Lawless than $1,000,000,000.
(md) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter Any fees required to be paid on or before the Closing Amendment Effective Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrowers shall have paid in full all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or paid concurrently with on the occurrence Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Dateclosing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(p) [intentionally omitted]
(qf) The Amendment Effective Date shall have occurred on or before February 7, 2014. Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable notice from such Lender prior to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating Amendment Effective Date specifying its objection thereto. Notwithstanding anything to the lien of CPF Capital & Trading, LLC shall have been filed contrary in the appropriate filing office Credit Agreement or herein, the parties hereto acknowledge that whether or not the Amendment Effective Date occurs, neither (i) the entry by Holdings into any Permitted Convertible Indebtedness Call Transaction or any share forward transaction in form and substance acceptable connection with the pricing of the 2014 Convertible Notes, nor (ii) any early unwind payment or other payment made by Holdings pursuant to any such Permitted Convertible Indebtedness Call Transaction or share forward transaction as a result of the Administrative Agent2014 Convertible Notes not being issued, in either case, shall result in any Default under the Credit Agreement.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This With respect to Section 1(a) hereof and Annex A hereto, in accordance with Section 3.03(c) of the Credit Agreement, this Amendment shall become effective at 5:00 p.m. (Eastern time) on the fifth Business Day following the date hereof (such date being the “SOFR Amendment Effective Date”) so long as Lenders comprising the Required Lenders have not, prior to such time, delivered to the Administrative Agent written notice that such Required Lenders object to the Adjustment (as defined in the Credit Agreement); provided, that the modification reflected in Section 2.01(b) of the Amended Credit Agreement which increases the sublimit in respect of the Tranche ▇ ▇/C Obligations of ARL to $150,000,000 shall have been only become effective upon receipt of duly executed and delivered by the Borrower and each Guarantorcounterparts of this Amendment from Lenders constituting Required Lenders.
(b) The Note With respect to Section 1(b) hereof and Annex B hereto, this Amendment shall have been duly executed and delivered by become effective upon the Borrower.satisfaction or waiver of the following conditions precedent (the date of such satisfaction or waiver being the “Amendment Effective Date”):
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(gi) The Administrative Agent shall have received:
(A) counterparts of this Amendment, on behalf duly executed by the Lenders party hereto;
(B) counterparts of itselfthat certain letter agreement dated as of the Amendment Effective Date among the Borrowers, Bank of America and the Collateral Arranger (the “Second Amendment Fee Letter”), duly executed by the parties thereto;
(C) an opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders, an opinion of ▇Lenders party hereto from (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special U.S. counsel to the Borrowers, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, special Bermuda counsel to the Borrowers, (iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLP, special English and Welsh counsel for the Loan Parties dated the Closing Date to Arch Europe, and addressed (iv) A&L Goodbody LLP, special Irish counsel to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.AREUL;
(hD) The Administrative Agent shall have received a certificate signed by a Responsible Officer of each Borrower, and attested to by the Secretary or any Assistant Secretary of such Borrower, together with (i) copies of its Organization Documents, (ii) the resolutions relating to the this Amendment and (iii) an incumbency certificate evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a copy Responsible Officer in connection with this Amendment and the other Credit Documents to which such Borrower is a party; and
(E) a certificate of each Tranche A Designated Subsidiary Borrower signed by a Responsible Officer of such Borrower certifying that, before and after giving effect to Section 1(b) hereof and Annex B hereto, (i) each of the certificate or articles representations and warranties of incorporation or organization, including such Borrower contained in the Amended Credit Agreement and the other Credit Documents are true in all amendments thereto, material respects on and as of each Loan Party the Amendment Effective Date with the same force and Project Company, certifiedeffect as if made on and as of such date (or, if applicableany such representation or warranty is expressly stated to have been made as of a specific date, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent such specific date, from such Secretary of State or similar Governmental Authority ); and (ii) a certificate no Event of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date Default has occurred and certifying is continuing.
(ii) (A) that attached thereto is a true and complete copy Upon the reasonable request of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a any Lender party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as hereto made at least 10 days prior to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Amendment Effective Date, the representations Borrowers shall have provided to such Lender, and warranties made by the Loan Parties in Article V such Lender shall be true and correct in all material respects.
(l) The Lenders shall have received all reasonably satisfied with, the documentation and other information required by regulatory authorities so requested in connection with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act; provided , in each case at least 3 days prior to the Amendment Effective Date and (B) at least 3 days prior to the Amendment Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Lenders Beneficial Ownership Regulation shall use commercially reasonable efforts have delivered, to ensure each Lender party hereto that such requests are delivered has so requested at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable LawAmendment Effective Date, a Beneficial Ownership Certification in relation to such Loan Party.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(qiii) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americascertificates of existence or good standing, Inc. and Canadian Solar as applicable, from the appropriate official of the jurisdiction of organization of each Loan Party (USAin each case, to the extent such a concept exists in such jurisdiction), Inc. with respect if any, which the Administrative Agent reasonably has requested.
(iv) The Administrative Agent and the Lenders shall have received all amounts due and payable by the Loan Parties on or prior to their existing liens against the Borrower in form Amendment Effective Date, including, amounts due and substance acceptable payable pursuant to the Second Amendment Fee Letter, and, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrowers under Section 6 hereof.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it on the Closing Date subject only to become effective upon satisfaction of the following conditions precedent, unless otherwise (the first date on which all of the following conditions have been satisfied or waived by the applicable Lenders in their sole discretion:party hereto being referred to herein as the “Second Amendment Effective Date”):
(a) This Agreement Administrative Agent shall have been duly received counterparts of this Amendment executed by ▇▇▇▇▇▇▇▇, Co-Borrower, the Administrative Agent, Collateral Agent and delivered by the Borrower all Existing Lenders (including each Exiting Lender) and each Guarantorall Additional Lenders.
(b) The Note representations and warranties set forth in this Amendment shall have been duly executed be true and delivered by correct in all material respects on the BorrowerSecond Amendment Effective Date.
(c) Each Collateral Document No Default or Event of Default shall have been duly executed occurred and delivered by each be continuing as of the parties theretoSecond Amendment Effective Date.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with and the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent Lenders shall have received, on behalf each of itself, the Collateral following in form and substance reasonably satisfactory to Administrative Agent and the Lenders, an :
(i) a favorable written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying Borrower (A) that attached thereto is a true and complete copy of dated the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Second Amendment Effective Date, (B) that attached thereto is a true addressed to Agents and complete copy of resolutions the Lenders, and (C) covering such matters relating to the Loan Parties, this Amendment, the other Loan Documents and the transactions described herein as Agents or the Lenders shall reasonably request;
(ii) certificates duly adopted executed by the board of directors (or equivalent governing body) secretary of each Loan Party authorizing attaching approved Borrowing Resolutions, a current Certificate of Incorporation (or equivalent document), Bylaws (or equivalent document) and a recent good standing certificate from the execution, delivery and performance jurisdiction of the such Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunderParty’s organization, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) certifying as to the incumbency and specimen signature of each officer executing any Loan Document on behalf Document;
(iii) a certificate, dated as of any the Second Amendment Effective Date and signed by a Responsible Officer of ▇▇▇▇▇▇▇▇, (A) confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Section and (B) certifying that each of the Loan Party Parties is solvent;
(iv) an updated Perfection Certificate in form and countersigned by another officer as substance reasonably satisfactory to the incumbency and specimen signature Lenders; and
(v) that certain letter agreement, dated as of the Secretary Second Amendment Effective Date, among Borrower, Co-Borrower and each holder of the New Warrants (as defined below).
(e) Prior to giving effect to the borrowing of the Second Amendment Term Loans on the Second Amendment Effective Date, the Unrestricted Cash of the Loan Parties deposited in Pledged Accounts located in the United States of America shall equal or Assistant Secretary executing exceed $25,000,000 on the certificate pursuant Second Amendment Effective Date.
(f) Borrower shall have issued new Warrants to clause certain Affiliates of the Lenders in the form of Warrant to Purchase Stock attached hereto as Annex A, executed by Borrower and each applicable Lender (the “New Warrants”).
(g) Substantially concurrently with the Second Amendment Effective Date, Borrower shall have (i) voluntarily prepaid and satisfied in full all Credit Extensions (as defined in the Existing Loan and Security Agreement) of each Exiting Lender, together with all accrued and unpaid interest accrued thereon, on a non-pro rata basis with cash from the balance sheet of Borrower, (ii) above.
(i) The Administrative Agent shall have received paid the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided Amendment Fee to the Administrative Agent, together with (in for the case of clause (y)) copies benefit of the financing statements Secured Parties, in full in cash; provided that the obligations of the Loan Parties to pay the portions of the Amendment Fee of the Converting Lenders shall be deemed to have been satisfied by conversion of each such Converting Lender’s portion of the Amendment Fee into Second Amendment PIK Fee pursuant to Section 2(e) of this Amendment and as set forth on Schedule 1.2 to the Loan and Security Agreement (or similar documentsas such schedule is amended by this Amendment upon the occurrence of the Second Amendment Effective Date) disclosed by such search and (iiiii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity provided evidence of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments foregoing reasonably satisfactory to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee RequirementAgent.
(jh) The Administrative Agent, Collateral Agent shall have received a certificate in and the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation fees, Agent Expenses, Lender Expenses and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” amounts due and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days payable on or prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Second Amendment Effective Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA)including, Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agentextent invoiced, reimbursement or payment of all out-of-pocket expenses required under any Loan Document.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretionconditions:
(a) This Agreement shall have been Receipt by the Administrative Agent of counterparts of this Amendment duly executed and delivered by the Borrower Borrowers, the Guarantors, the Administrative Agent, the Required Lenders, the Voting Participants and each Guarantor.Lender with a Term Loan P Commitment;
(b) The Note shall have been duly executed and delivered Receipt by the BorrowerAdministrative Agent of the following:
(i) a certificate of each Loan Party dated as of the Fifth Amendment Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Term Loan P, as well as a such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization and (B) certifying that, before and after giving effect to the Term Loan P, (x) the representations and warranties contained in Article V of the Amended Term Loan Agreement and the other Loan Documents are true and correct as of such date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.01 of the Amended Term Loan Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Amended Term Loan Agreement, and (y) no Default exists;
(ii) a Note executed by each of the Borrowers in favor of each Lender requesting a Note for the Term Loan P; and
(iii) (A) a legal opinion of M▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Corporate Secretary of the Borrowers and Guarantors, and (B) a legal opinion of P▇▇▇▇▇▇ Coie LLP, special counsel to the Borrowers, in each case dated as of the Fifth Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) Each Collateral Document shall have been duly executed The payment by the Borrowers of all fees and delivered by each expenses due and payable as of the parties thereto.
(d) The Blackstone Consents shall have been duly executed Fifth Amendment Effective Date, including the reasonable out-of-pocket costs and delivered by each expenses of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion reasonable fees and expenses of M▇▇▇▇ & V▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Sixth Amendment shall make not become effective until the Loans to be made by it date on the Closing Date subject only to which each of the following conditions precedent, unless otherwise is satisfied (or waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each accordance with Section 12.02 of the parties thereto.Credit Agreement):
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 5.1 The Administrative Agent shall have received a Committed Loan Notice (a) from each party hereto, counterparts (in accordance with such number as may be requested by the requirements hereof at least one day prior to the requested date for funding such Loan.
(gAdministrative Agent) The Administrative Agent shall have received, of this Sixth Amendment signed on behalf of itselfsuch Person and (b) from each party thereto counterparts (in such number as may be requested by the Administrative Agent) of the amendments to the Security Instruments to conform them to the amendments in this Sixth Amendment.
5.2 The Administrative Agent, Arranger and the Lenders shall have received all fees and other amounts due and payable to the Administrative Agent and, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder (including, without limitation, the Collateral Agent fees and the Lenders, an opinion expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPL.L.P., special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind).
(h) 5.3 Borrower, or Republic on behalf of the Borrower, shall have paid $5,000,000 to the Administrative Agent to be applied to the Indebtedness in the manner set forth in Section 10.02(c).
5.4 The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of a Responsible Officer of the Secretary or Assistant Secretary Borrower certifying that: (a) Republic and the Borrower are concurrently consummating the transactions contemplated by and in accordance with the terms of each Loan Party dated the Closing Date Republic Agreement, and certifying (Ab) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of Republic Agreement and all other documents executed in accordance therewith.
5.5 The Borrower shall have granted to the Administrative Agent a 1.5% overriding royalty interest in each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and▇▇▇▇▇ 2H, in the case of the Borrower▇▇▇▇▇▇ 1H, the borrowings hereunder, ▇▇▇▇▇▇ 1H and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished ▇▇▇▇▇ 1H ▇▇▇▇▇ pursuant to clause (i) above, and (D) as to the incumbency and specimen signature an Assignment of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties Overriding Royalty Interest in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided a form satisfactory to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed . Such 1.5% overriding royalty interest granted by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary pursuant to satisfy this Section 5.5 of the Collateral and Guarantee Requirement.
Third Amendment shall be proportionately reduced (ja) The Administrative Agent shall have received a certificate to the extent the Borrower or its Subsidiary owns less than the full working interest in the form oil and gas leases on which such ▇▇▇▇▇ are drilled and (b) to the extent such oil and gas leases cover less than the full mineral interest, each of Exhibit I, dated the Closing Date (a) and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent (b) as of the Closing Sixth Amendment Effective Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Trans Energy Inc)
Conditions Precedent. Each Lender
4.1 The respective rights and obligations of the Parties under this Agreement shall make be subject to the Loans satisfaction of the conditions precedent specified in this Article 4 (“Conditions Precedent”). Provided, however, that a Party may grant waiver from satisfaction of any Condition Precedent by the other Party in accordance with the provisions of Clauses 4.2 and 4.3, as the case may be, and to the extent of such waiver, that Condition Precedent shall be deemed to be made by it on fulfilled for the Closing Date subject only purpose of this Article 4.
4.2 The Beneficiary Firm may, upon providing the Performance Security to the following conditions precedentGovernment in accordance with this Agreement, unless otherwise waived by notice require the Government to satisfy the Condition Precedent set forth in this Clause
4.3 The Conditions Precedent to be fulfilled by the Lenders in their sole discretionBeneficiary Firm within the time specified below or where no time period is specified, within 120 (one hundred twenty) days from the Execution Date shall be deemed to have been fulfilled when Beneficiary Firm shall have:
(a) This executed the Tripartite Agreement shall have been duly executed with the Government and delivered by the Borrower and each Guarantor.relevant state government;
(b) The Note shall have been duly executed and delivered by provided the Borrower.Performance Security within 30 (thirty) days of the Execution Date; and
(c) Each Collateral Document shall have been duly executed and delivered by each provided a Construction Plan within 90 (ninety) days of the parties theretoExecution Date.
(d) The Blackstone Consents 4.4 Each Party shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including make all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary reasonable endeavours to satisfy the Collateral Conditions Precedent within the time stipulated and Guarantee Requirementshall provide the other Party with such reasonable cooperation as may be required to assist the Party in satisfying the Conditions Precedent for which that Party is responsible.
4.5 Subject to the terms and conditions specified hereinabove, if either Party fails to achieve the Conditions Precedent within the prescribed period under Clause 4.2 and 4.3, and such failure is not on account of the default of other Party or Force Majeure Event, then such Party shall be entitled to extension of the time period by 60 (jsixty) days or such additional time period as agreed by the other Party, for fulfilment of the respective Condition Precedent. The Administrative Agent Beneficiary Firm shall be entitled to an extension of the time stipulated for executing of the Tripartite Agreement if such execution has been delayed solely on account of an act or omission on the part of the Government and/ or the relevant state government, as the case may be.
4.6 The Parties agree that the date on which all the Conditions Precedent are satisfied or waived, as the case may be, shall be the Appointed Date. If the Parties are not able to fulfil the Conditions Precedent or if the Conditions Precedent are not waived as per the timelines stated above, this Agreement shall cease to be effective and binding on the Parties and the Parties shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Dateno further liabilities or obligations towards each other.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Programme Agreement
Conditions Precedent. Each Lender It shall make the Loans to be made by it on the Closing Date subject only a condition precedent to the following conditions precedentparties entering into each Transaction, unless otherwise waived by under this Agreement that Purchaser receives the Lenders in their sole discretionfollowing:
(ai) This Agreement shall have been duly executed a certificate of a Responsible Officer attaching certified copies of Seller’s certificate of formation, operating agreement and delivered by resolutions of Seller’s board of directors authorizing the Borrower and each Guarantor.transactions contemplated hereby;
(bii) The Note shall have been duly executed a certificate of incumbency of authorized representatives which sets forth the names, titles and delivered true signatures of all of those individuals authorized to execute any document or instrument contemplated by this Agreement and the Borrower.Custodial Agreement;
(ciii) Each Collateral Document shall have been duly an opinion of counsel of the Seller, (A) in the form of Exhibit D or such other form as the Purchaser may accept (including a non-contravention, enforceability and corporate opinion with respect to Seller); (B) an opinion with respect to the inapplicability of the Investment Company Act of 1940 to Seller and (C) a true sale opinion; each in form and substance acceptable to Purchaser;
(iv) the Program Documents fully executed and delivered by each of the parties thereto.; and
(dv) The Blackstone Consents shall have been duly executed and delivered such other documents reasonably requested by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind▇▇.
(ha) The Administrative Agent It shall have received be a condition precedent to the parties entering into additional Transactions, under this Agreement that:
(i) Purchaser receives a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of Takeout Commitment covering in the aggregate a recent date by the Secretary of State of the state of its organization, and a certificate as Takeout Amount equal to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and Agency Security Face Amount;
(ii) a certificate of Purchaser receives the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing DateTakeout Commitment Assignment(s), (B) that attached thereto is a true and complete copy of resolutions duly adopted executed by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent▇▇▇▇▇▇, together with appropriate instructions sufficient to ensure that Purchaser can obtain the consent of each Takeout Buyer to the assignment of the Takeout Commitment;
(in the case of clause (y)iii) Purchaser receives such copies of the financing statements relevant Pooling Documents (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement originals of which shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (xthe Agency) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments as Purchaser may request from time to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.time; LEGAL02/44901976v2
(jiv) The Administrative Agent shall have received Purchaser receives a certificate letter from any warehouse lender having a security interest in the Mortgage Loans, addressed to Purchaser, releasing any and all right, title and interest in such Mortgage Loans, substantially in the form of Exhibit I, dated an exhibit to the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as Custodial Agreement;
(v) Purchaser receives an electronic copy of the Closing Date.original Participation Certificate fully completed by Seller and authenticated by Custodian;
(kvi) On no Servicing Termination Event or Potential Servicing Termination Event shall have occurred and be continuing under the Closing DateProgram Documents and under the Master Repurchase Agreement;
(vii) Purchaser receives an electronic data file for each Transaction, including all fields set forth on Exhibit B hereto;
(viii) the representations and warranties made by the Loan Parties in Article V Seller shall be true true, correct and correct complete on and as of such Purchase Date in all material respects.respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(lix) The Lenders after giving effect to the requested Transaction, the aggregate outstanding Purchase Price for all Mortgage Loans subject to Outstanding Transactions under this Agreement shall not exceed the Maximum Purchase Price;
(x) there shall have received all documentation and other information required by regulatory authorities with respect been no Material Adverse Effect on the financial condition of Seller since the most recent financial statements of Seller were delivered to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActPurchaser; provided that the Lenders shall use commercially reasonable efforts to ensure that and
(xi) such requests are delivered Purchase Date occurs at least 10 days [***] prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawrelated Settlement Date.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Mortgage Loan Participation Sale Agreement (loanDepot, Inc.)
Conditions Precedent. Each Lender This Amendment shall make the Loans to be made by it on the Closing Date subject become effective only to upon satisfaction or waiver of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent (the date such conditions are satisfied or waived, unless otherwise waived by the Lenders in their sole discretion:“First Amendment Effective Date”):
(a) This Agreement The Merger shall have occurred and all or a portion of the Facilities shall have been duly executed and delivered by the Borrower and each Guarantorfunded or made available.
(b) The Note Administrative Agent’s receipt of the following, each of which shall have been duly be originals or telecopies (followed as promptly as practicable by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the First Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the First Amendment Effective Date) and delivered by each in form and substance satisfactory to the Borrower.
(c) Each Collateral Document shall have been duly executed Administrative Agent and delivered by each of the parties thereto.Lenders:
(di) The Blackstone Consents shall have been duly executed counterparts of this Amendment;
(ii) a certificate of a Responsible Officer of each Loan Party, dated the First Amendment Effective Date, certifying as to the Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall, to the extent available and delivered customary, be certified as of a recent date by each such Governmental Authority), the resolutions of the parties thereto.governing body of each Loan Party and an incumbency (including specimen signatures) of the Responsible Officers of each Loan Party;
(eiii) The Closing Date Subordination Agreements shall have been such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly executed organized or formed, and delivered by that each Loan Party is validly existing, in good standing (where applicable) and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the parties thereto.conduct of its business requires such qualification;
(fiv) The Administrative Agent shall have received (A) a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an favorable opinion of ▇▇▇▇▇▇▇ Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, as to customary matters concerning the LendersLoan Parties and the Loan Documents as the Administrative Agent may reasonably request, (B) a favorable opinion of ▇▇▇▇▇▇▇ (Bermuda) Limited, Bermuda counsel to the Parent, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Parent and the Loan Documents as the Administrative Agent may reasonably request, (C) a favorable opinion of ▇▇▇▇▇▇ Avocats Luxembourg, Luxembourg counsel to the Luxembourg Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Luxembourg Borrower and the Loan Documents as the Administrative Agent may reasonably request, (D) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (E) in accordance with the Foreign Security Principles, such other opinions of local counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, for such jurisdictions, and as to matters concerning the Loan Parties and the Loan Documents, as the Administrative Agent may reasonably request;
(v) a certificate signed by a Responsible Officer of Parent certifying that the conditions specified in Sections 4.01(e), (f), (g) and (h) of the Closing Date Credit Agreement have been satisfied;
(vi) certificate attesting to the solvency of Parent and its Subsidiaries, taken as a whole, before and after giving effect to the Transactions, from its chief financial officer, in each case in substantially the form and substance customary for senior secured credit facilities in transactions of this kind.Exhibit G to the Credit Agreement;
(hc) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organizationreceived, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as at least three Business Days prior to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing First Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company such later time as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit Iagree), dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information concerning the Parent and each of its Subsidiaries as has been reasonably requested in writing at least 10 Business Days prior to the First Amendment Effective Date by any Lender and as it reasonably determines is required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(md) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(oi) All amounts fees required to be paid under Section 2.06 to the Administrative Agent and the BAML Engagement Letter Arrangers on or prior to the First Amendment Effective Date in connection with this Amendment shall have been, or concurrently with the First Amendment Effective Date are being, paid and (ii) all fees required to be paid to the Lenders on or before prior to the Closing First Amendment Effective Date in connection with this Amendment shall have been paid in full (been, or paid concurrently with the occurrence First Amendment Effective Date are being, paid (any of which amounts may be offset against the proceeds of the Closing DateAdditional Term Loans).
(pe) [intentionally omitted]
(q) The Unless waived by the Administrative Agent Agent, the Borrowers shall have received estoppel letters duly executed by Yingli Green Energy Americaspaid all reasonable and documented fees, Inc. charges and Canadian Solar (USA)disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., Inc. with respect to their existing liens against the Borrower in form and substance acceptable counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent), and a single local counsel to the Administrative Agent in each applicable jurisdiction, in each case in accordance with Section 10.04(a) of the Credit Agreement and solely to the extent invoiced no later than two Business Days prior to the First Amendment Effective Date.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(sf) The Administrative Agent shall have received a duly executed funds flow memorandum Request for Credit Extension in form and substance acceptable accordance with the requirements of the Credit Agreement. Notwithstanding anything to the contrary, the Loan Parties party hereto, the Administrative AgentAgent and the Lenders agree that the foregoing conditions precedent shall be deemed satisfied by the funding of the Additional Initial Tranche B-1 Term Loans and Additional Initial Tranche B-2 Term Loans on the Closing Date.
Appears in 1 contract
Conditions Precedent. Each Lender This Amendment shall make become effective upon the Loans to be made by it first date on the Closing Date subject only to which the following conditions precedent, unless otherwise precedent have been satisfied or waived by (such date being the Lenders in their sole discretion:“First Amendment Effective Date”):
(a) This Agreement The Administrative Agent’s receipt of the following, each of which shall have been duly be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the First Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the First Amendment Effective Date) and delivered each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
i. executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
ii. executed counterparts of that certain letter agreement dated as of August 15, 2025, among the Borrower, the Administrative Agent and the Arranger (the “First Amendment Fee Letter”);
iii. a Note executed by the Borrower and in favor each Guarantor.
Lender requesting a Note (b) The Note shall have been duly executed and delivered by to the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof extent requested at least one day three (3) Business Days prior to the requested date for funding First Amendment Effective Date);
iv. such Loan.
(g) The certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent shall have receivedmay require evidencing the identity, on behalf authority and capacity of itself, the Collateral Agent each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Lenders, an other Loan Documents to which the Borrower is a party or is to be a party;
v. such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is validly existing and in good standing in its jurisdiction of incorporation;
vi. a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Loan Parties dated the Closing Date and Borrower, addressed to the Administrative Agent, the Collateral Agent and the Lenderseach Lender, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.form; and;
(h) The Administrative Agent shall have received (i) vii. a copy certificate signed by a Responsible Officer of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and Borrower certifying (A) that attached thereto is a true the conditions specified in Sections 4.02(a) and complete copy (b) of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing DateAmended Credit Agreement have been satisfied, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (there has been no event or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended circumstance since the date of the last amendment thereto shown on Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the certificate of the Secretary of State furnished pursuant to clause (i) aboveaggregate, a Material Adverse Effect, and (DC) a calculation of the Consolidated Net Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) aboveFirst Amendment Effective Date.
(i) The Administrative Agent shall have received Upon the results reasonable request of any Lender made at least ten (x10) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect days prior to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing First Amendment Effective Date, the representations Borrower shall have provided to such Lender, and warranties made by the Loan Parties in Article V such Lender shall be true and correct in all material respects.
(l) The Lenders shall have received all reasonably satisfied with, the documentation and other information required by regulatory authorities so requested in connection with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered , in each case at least 10 three (3) days prior to the Closing First Amendment Effective Date and are not unduly burdensome on (ii) at least three (3) days prior to the First Amendment Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower (subject, in the case of this clause (ii), to any person unless required by applicable Lawexceptions or limitations applicable to a public company).
(mc) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter Any fees required to be paid on or before the Closing First Amendment Effective Date shall have been paid in full (on or paid substantially concurrently with the occurrence of the Closing First Amendment Effective Date).
(pd) [intentionally omitted]
(q) The Unless waived by the Administrative Agent Agent, the Borrower shall have received estoppel letters duly executed by Yingli Green Energy Americaspaid, Inc. on or substantially concurrently with the First Amendment Effective Date, all fees, charges and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable disbursements of one counsel to the Administrative Agent.
Agent and the Lenders collectively (r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable directly to such counsel if requested by the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agentextent invoiced in reasonable detail at least two (2) Business Days prior to or on the First Amendment Effective Date.
Appears in 1 contract
Conditions Precedent. Each Lender shall make the Loans to be made by it on the Closing Date subject only to the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement shall have been duly executed and delivered by become effective on the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by date the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by Administrative Agent has confirmed the satisfaction or waiver of each of the parties thereto.
conditions contained in this Section 3 (d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing “Effective Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.”):
(i) The Administrative Agent shall have received the results counterparts of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security this Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each (1) the Loan Party that is to be a party theretoParties, together with (x2) certificates representing the Pledged Equity of Administrative Agent, (3) the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank Required Lenders and (y4) documents and instruments each Extending Lender;
(ii) The Borrower shall have paid to be recorded or filed that the Administrative Agent may deem reasonably necessary all expenses payable pursuant to satisfy Section 9.03 of the Collateral and Guarantee Requirement.Credit Agreement which have accrued to the Effective Date to the extent invoices therefor have been provided at least one Business Day prior to the Effective Date;
(jiii) The Administrative Agent shall have received the executed legal opinion of Fenwick & West LLP, counsel for the Borrower, in form and substance reasonably satisfactory to Administrative Agent (but in any event limited to a certificate in customary enforceability opinion);
(iv) The Administrative Agent shall have received (1) certified copies of the form resolutions of Exhibit Ithe board of directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and all documents evidencing other necessary organizational action and governmental approvals, dated the Closing Date if any, with respect to this Agreement and signed (2) all other documents reasonably requested by the Chief Financial Officer Administrative Agent relating to the organization, existence and good standing of Borrower, certifying that the Borrower and its Subsidiaries, on a consolidated basis, are Solvent as the authorization of the Closing Date.transactions contemplated hereby;
(kv) On the Closing Date, the The representations and warranties made by of the Borrower set forth in the Loan Parties in Article V Documents (including, without limitation, this Agreement) shall be true and correct in all material respects on and as of the Effective Date except that (1) the representations and warranties contained in Section 3.04(a) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) (subject, in the case of unaudited financial statements furnished pursuant to clause (b), to year-end audit adjustments and the absence of footnotes), respectively, of Section 5.01 of the Credit Agreement, (2) to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date and (3) to the extent that such representations and warranties are already qualified or modified by materiality or words of similar effect in the text thereof, they shall be true and correct in all respects.;
(lvi) The Lenders As of the Effective Date, no Default or Event of Default shall have received all documentation occurred and other information required by regulatory authorities with respect to be continuing or will result from the Borrower reasonably requested by execution of this Agreement and the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation transactions contemplated hereby as of the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.Effective Date;
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(qvii) The Administrative Agent shall have received estoppel letters duly executed (1) a certificate, dated the Effective Date and signed on behalf of the Borrower by Yingli Green Energy Americasthe President, Inc. and Canadian Solar a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (USAv), Inc. with respect to their existing liens against (vi) and (viii) of this Section 3(a) as of the Effective Date, and (2) a solvency certificate, dated the Effective Date and signed on behalf of the Borrower in form by the most senior financial officer of the Borrower, certifying that, as of the Effective Date, the Borrower and substance acceptable the Restricted Subsidiaries, taken as a whole, are, and after giving effect to the Administrative Agent.incurrence of any Indebtedness and obligations being incurred in connection herewith will be, Solvent; and
(rviii) The Administrative Agent As of the Effective Date, both before and immediately after giving effect to transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have received evidence that a UCC-3 termination statement terminating the lien Liquidity of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agentnot less than $300,000,000.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender This Sixth Amendment shall make the Loans to be made by it become effective on the Closing Date subject only to date (such date, the “Sixth Amendment Effective Date”), when each of the following conditions precedent, unless otherwise is satisfied (or waived by the Lenders in their sole discretion:accordance with Section 12.02):
(a) This Agreement shall have been duly executed and delivered by the Borrower and each Guarantor.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) 4.1 The Administrative Agent shall have received a Committed Loan Notice from all of the Lenders and the Borrower, counterparts (in accordance with such number as may be requested by the requirements hereof at least one day prior to the requested date for funding such Loan.
(gAdministrative Agent) The Administrative Agent shall have received, of this Sixth Amendment signed on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities in transactions of this kindsuch Person.
(h) 4.2 The Administrative Agent shall have received from each party thereto duly executed counterparts (iin such number as may be requested by the Administrative Agent) a copy of such amendments to the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicableGuaranty Agreement, as of a recent date by the Secretary of State of the state of its organization, and a certificate as are reasonably necessary to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) ensure that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and all Secured Swap Obligations are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) abovesecured thereby.
(i) 4.3 The Administrative Agent shall have received the results of from each party thereto duly executed counterparts (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to number as may be requested by the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search Memorandum of Assignment of Liens and (ii) the Security Agreement Interests and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is Amendment to be a party theretoDeed of Trust, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem as are reasonably necessary to satisfy effect the Collateral assignment to ▇▇▇▇▇ of the Liens and Guarantee Requirementsecurity interests of the mortgages and to ensure that all Secured Swap Obligations are secured by the mortgages.
(j) 4.4 The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the date hereof, including, to the extent invoiced, reimbursement or payment of all documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.
4.5 No Default shall have occurred and be continuing as of the date hereof, after giving effect to the terms of this Sixth Amendment.
4.6 The Administrative Agent shall have received a certificate in such other documents as the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and Administrative Agent or its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower special counsel may reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) require. The Administrative Agent shall have is hereby authorized and directed to declare this Sixth Amendment to be effective when it has received estoppel letters duly executed by Yingli Green Energy Americasdocuments confirming or certifying, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to satisfaction of the Administrative Agent.
(r) The Administrative Agent , compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted in Section 12.02. Such declaration shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Tradingbe final, LLC shall have been filed in the appropriate filing office in form conclusive and substance acceptable binding upon all parties to the Administrative AgentCredit Agreement for all purposes.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
Appears in 1 contract
Conditions Precedent. Each Lender shall make The effectiveness of this Amendment is subject to the Loans to be made truth and accuracy of the representations and warranties set forth herein (and incorporated by it on the Closing Date subject only to reference) and satisfaction or waiver of the following conditions precedentprecedent (the date of such satisfaction or waiver of the following conditions, unless otherwise waived by the Lenders in their sole discretion:“Second Amendment Effective Date”):
(a) This Agreement On or prior to the date of this Amendment, the Administrative Agent shall have been received:
(i) a counterpart of this Amendment duly executed and delivered by the Borrower Company, PK Domestic LLC, the Parent and each Guarantorof the Requisite Lenders;
(ii) each of the instruments, documents, certificates and opinions specified in Exhibit B hereto (other than any instruments, documents, certificates and opinions marked to be delivered post-closing), duly completed and executed, together with such other instruments, documents, certificates and opinions as the Administrative Agent may have reasonably requested;
(iii) pro forma financial projections showing compliance with cash flow projections and projections with respect to the covenant set forth in Section 10.1.(g) of the Amended Loan Agreement, in each case, in a form reasonably acceptable to the Administrative Agent;
(iv) a written notice from the Borrower, in a form reasonably acceptable to the Administrative Agent, stating that the Borrower has commenced an offering of Permitted Capital Markets Indebtedness all or a portion of the proceeds of which shall be used to prepay the Term Loans in accordance with the terms of the proviso to Section 2.9.(b)(D) of the Amended Loan Agreement (which such proviso as set forth in Exhibit A attached hereto shall be deemed effective on the date hereof for purposes of the prepayment of the Term Loans) (the “Specified Permitted Capital Markets Transaction”); and
(v) an executed copy of the amendment to the Existing Credit Agreement dated as of the date hereof.
(b) The Note shall have been duly executed and delivered by the Borrower.
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day On or prior to the requested date for funding such Loan.
tenth (g10th) The Business Day following the delivery of the notice delivered to the Administrative Agent pursuant to Section 3(a)(iv), the Administrative Agent shall have received:
(i) all fees owed to the Arrangers and the Lenders (including the fees referenced in the Fee Letters described in the definition of “Fee Letters” in the Amended Loan Agreement) incurred in connection with this Amendment and required to be paid as of the Second Amendment Effective Date and all expenses (including, on behalf of itselfwithout limitation, the Collateral Agent reasonable and documented out-of-pocket fees and expenses of legal counsel of the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel Administrative Agent) for which invoices have been presented to the Loan Parties dated Company on or prior to the Closing Second Amendment Effective Date and addressed shall have been paid; and
(ii) evidence reasonably acceptable to the Administrative AgentAgent that the Borrower shall have prepaid the aggregate outstanding principal amount of the Term Loans and all accrued but unpaid interest thereon in full in accordance with the proviso to Section 2.9.(b)(D) of the Amended Loan Agreement (which such proviso as set forth in Exhibit A attached hereto shall be deemed effective on the date hereof for purposes of the prepayment of the Term Loans); provided that such prepayment shall include proceeds of a Specified Permitted Capital Markets Transaction in an aggregate principal amount not less than $500,000,000. Notwithstanding the delivery and release by any Lender of duly executed signature pages to this Amendment prior to the satisfaction of the conditions in clause (b) above, none of the Collateral Agent modifications to the Existing Loan Agreement set forth herein shall be effective, and the LendersSecond Amendment Effective Date shall not occur, in unless and until (x) the satisfaction or waiver of each case in form and substance customary for senior secured credit facilities in transactions of this kind.
(h) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of each Loan Party and Project Company as conditions set forth in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of each Loan Party and Project Company have not been amended since the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (ia) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(i) The Administrative Agent shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect to the Loan Parties in the states or other jurisdictions satisfaction of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed conditions set forth in blank and clause (yb) documents and instruments to above, which date of satisfaction shall not be recorded or filed that later than the Administrative Agent may deem reasonably necessary to satisfy tenth (10th) Business Day following the Collateral and Guarantee Requirement.
(j) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as date of the Closing Date.
(k) On the Closing Date, the representations and warranties made by the Loan Parties notice set forth in Article V shall be true and correct in all material respects.
(l) The Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Law.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date2(a)(iv).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
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Conditions Precedent. Each Lender This Amendment No. 10 shall make be effective upon the Loans to be made by it on the Closing Date subject only to satisfaction of each of the following conditions precedent, unless otherwise waived by the Lenders in their sole discretion:
(a) This Agreement Agent shall have been received counterparts of this Amendment No. 10, duly authorized, executed and delivered by each Borrower, each Guarantor and the Borrower and each Guarantor.Lenders;
(b) The Note Agent shall have been received, in form and substance satisfactory to Agent, mortgage modifications in connection with the Mortgages on the Real Property Collateral located in Marion County, Indiana, in each case, duly authorized, executed and delivered by the Borrower.;
(c) Each Collateral Document shall have been duly executed and delivered by each of the parties thereto.
(d) The Blackstone Consents shall have been duly executed and delivered by each of the parties thereto.
(e) The Closing Date Subordination Agreements shall have been duly executed and delivered by each of the parties thereto.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof at least one day prior to the requested date for funding such Loan.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in each case in form and substance customary for senior secured credit facilities satisfactory to Agent, from the applicable title insurance companies, endorsements to the title policies related to the Mortgages on the Real Property Collateral located in transactions of this kind.Marion County, Indiana;
(hd) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organizationreceived, including all amendments theretoin form and substance satisfactory to Agent, of each Loan Party and Project Company, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to from the good standing (where relevant) of each Loan Party and Project Company as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated (i) attesting to the Closing Date and certifying (A) that attached thereto is a true and complete copy resolutions of the by-laws or operating (or limited liability company) agreement such Loan Party’s Board of each Loan Party and Project Company as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party Directors authorizing the its execution, delivery delivery, and performance of this Amendment No. 10 and the Loan other Amendment Documents to which such Person Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effectparty, (Cii) that the certificate or articles authorizing specific officers of incorporation or organization of each such Loan Party and Project Company have not been amended since to execute the date of the last amendment thereto shown on the certificate of the Secretary of State furnished pursuant to clause (i) abovesame, and (Diii) as attesting to the incumbency and specimen signature signatures of such specific officers of such Loan Party;
(e) Agent shall have received, in form and substance satisfactory to Agent, a certificate of status with respect to each Loan Party, dated within twenty (20) days of the date hereof (or such earlier date as Agent may agree), such certificate to be issued by the appropriate officer executing any of the jurisdiction of organization of such Loan Document on behalf of any Party, which certificate shall indicate that such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.is in good standing in such jurisdiction;
(if) The Administrative Agent shall have received in immediately available funds (or Agent shall have charged the results loan account of (xBorrower) searches the full amount of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, made with respect amendment fee referred to the Loan Parties in the states or other jurisdictions of formation of such Person and with respect to such other locations and names provided to the Administrative Agent, together with (in the case of clause (y)) copies of the financing statements (or similar documents) disclosed by such search and (ii) the Security Agreement Section 3 hereof and the Parent Pledge Agreement shall have been duly executed and delivered by each Loan Party that is full amount of all other fees required to be a party thereto, together paid by the Borrowers in connection with (x) certificates representing the Pledged Equity of the Borrower and each of the Closing Pledged Companies accompanied by undated stock powers executed in blank and (y) documents and instruments to be recorded or filed that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement.this Amendment No. 10;
(jg) The Administrative Agent shall have received a certificate in the form of Exhibit I, dated the Closing Date and signed by the Chief Financial Officer of Borrower, certifying that Borrower and its Subsidiaries, on a consolidated basis, are Solvent as of the Closing Date.internal Flood Disaster Prevention Act approval; and
(kh) On after giving effect to the Closing Dateprovisions of this Amendment No. 10, the representations and warranties made by the Loan Parties in Article V shall be true and correct in all material respects.
(l) The Lenders no Default or Event of Default shall have received all documentation occurred and other information required by regulatory authorities with respect to the Borrower reasonably requested by the Lenders under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; provided that the Lenders shall use commercially reasonable efforts to ensure that such requests are delivered at least 10 days prior to the Closing Date and are not unduly burdensome on any person unless required by applicable Lawbe continuing.
(m) The Lenders shall have received the Unaudited Financial Statements.
(n) The Borrower shall have established the Interest Reserve Account.
(o) All amounts required to be paid under Section 2.06 and the BAML Engagement Letter required to be paid on or before the Closing Date shall have been paid in full (or paid concurrently with the occurrence of the Closing Date).
(p) [intentionally omitted]
(q) The Administrative Agent shall have received estoppel letters duly executed by Yingli Green Energy Americas, Inc. and Canadian Solar (USA), Inc. with respect to their existing liens against the Borrower in form and substance acceptable to the Administrative Agent.
(r) The Administrative Agent shall have received evidence that a UCC-3 termination statement terminating the lien of CPF Capital & Trading, LLC shall have been filed in the appropriate filing office in form and substance acceptable to the Administrative Agent.
(s) The Administrative Agent shall have received a duly executed funds flow memorandum in form and substance acceptable to the Administrative Agent.
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