Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1): (a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower; (b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender; (c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company; (d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person; (e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable; (f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date; (g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent; (h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event; (i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect; (j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date. (k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower; (l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and (m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. Lenders will not be obligated At or prior to fund the making of the initial Loans extension of credit hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the following conditions in clauses (l) and (m) below precedent shall also have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):satisfied:
(a) an the Agent shall have received the following for the account of the Lenders (each to be properly executed counterpart and completed) and the same shall have been approved as to form and substance by the Agent:
(i) the A Notes;
(ii) the Guaranties (if any);
(iii) certified copies of resolutions of the Board of Directors of the Company and each Guarantor authorizing the execution and delivery of this Agreement, sufficient in number for distribution to Administrative Agentthe Notes and the Guaranties, as appropriate;
(iv) copies of the articles of incorporation and by-laws of the Company and each LenderGuarantor certified by the Secretary or other appropriate officer of the Company or such Guarantor, as the case may be; and
(v) an incumbency certificate containing the name, title and Borrower;genuine signatures of each of the Company's Authorized Representatives.
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable legal matters incident to the order execution and delivery of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term this Agreement and the other Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable Documents and to the order transactions contemplated hereby shall be reasonably satisfactory to each Lender and its counsel; and the Agent shall have received for the account of such requesting Term Loan Lender, the Lenders the favorable written opinion of counsel for the Company in form set forth as contemplated in Section 3.1(a), and (iiiExhibit 7.2(c) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lenderhereof;
(c) from any Restricted the Agent shall have received for the account of the Lenders a good standing certificate for the Company (other than Borrower) organized under the Laws dated as of the United States date no earlier than thirty (or any 30) days prior to the date hereof) from the office of the secretaries of state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Companythe states of Illinois and Iowa;
(d) from any Restricted Company organized under the Laws Agent shall have received for the account of the United States Lenders a good standing certificate for each Guarantor (dated as of the date no earlier than thirty (30) days prior to the date hereof) from the office of the secretary of the state in which such Guarantor was incorporated or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Personformed;
(e) an Officers’ Certificate for each Restricted Company, relating The proceeds of such initial credit shall be used to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to pay in full all outstanding "Obligations" under the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (Existing Credit Agreement except to the extent qualified by materiality, such "Obligations" constitute a "LIBOR Portions," in which case they event such "Obligations" shall be true and correct); (ii) no Default or Potential Default exists under deemed A Loans made by the Existing Agreement; (iii) no Default or Potential Default exists or would result from same Lender hereunder evidenced by the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided relevant A Notes issued to such Lender, with interest on each such "LIBOR Portion" to be due and payable at the end of the "Interest Period" applicable thereto at the time such Lender shall be reasonably satisfied with, "LIBOR Portion" becomes evidenced by the documentation A Notes and other information so requested in connection with the interest applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, to each such "LIBOR Portion" to continue at the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” rate which would otherwise applicable thereto under the Beneficial Ownership Regulation shall deliver, to each Lender Existing Credit Agreement (except that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, "Applicable Margin" under the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Existing Credit Agreement shall be deemed to have consented tothe Applicable Margin hereunder). The Lenders and the Company agree that concurrently with such initial credit, approved or accepted, or been satisfied with each document or other matter required the Existing Credit Agreement shall terminate and all "Obligations" outstanding thereunder to (except for such "LIBOR Portions") shall be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.due and payable; and
Appears in 1 contract
Initial Advance. Lenders will not be obligated At or prior to fund the making of the initial Loans extension of credit hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the following conditions in clauses (l) and (m) below precedent shall also have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):satisfied:
(a) an executed counterpart of this Agreementthe Bank shall have received the following (and, sufficient in number for distribution with respect to Administrative Agentall documents, each Lenderto be properly executed and completed) and the same shall have been approved as to form and substance by the Bank:
(i) the Note;
(ii) the Guaranty;
(iii) copies (executed or certified as may be appropriate) of resolutions of the Board of Directors or other governing body of the Borrower and of each Subsidiary Guarantor authorizing the execution, delivery, and performance of the Loan Documents;
(iv) articles of incorporation (or equivalent formation documents) of the Borrower and of each Subsidiary Guarantor certified by the appropriate governmental office of the state of its organization;
(v) by-laws (or equivalent governing documents) for the Borrower and for each Subsidiary Guarantor certified by an appropriate officer of such Person acceptable to the Bank;
(vi) an incumbency certificate containing the name, title and genuine signature of the Borrower's Authorized Representatives; and
(vii) a good standing certificate for the Borrower and each Subsidiary, dated as of a date no earlier than 45 days prior to the date hereof, from the appropriate governmental offices in the state of its incorporation or organization and in each state in the United States in which it is qualified to do business as a foreign organization;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated Bank shall have received the closing fee specified in Section 3.1(a), (ii2.13(c) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lenderhereof;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant legal matters incident to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; Documents and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably transactions contemplated hereby shall be expected satisfactory to result in a Material Adverse Eventthe Bank and its counsel;
(id) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained Bank shall have received financing statement, tax and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to judgment lien search results against the Closing Date, Property of the Borrower shall have provided to such Lenderand its Subsidiaries, and such Lender shall be reasonably satisfied with, evidencing the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies absence of Liens on their Property except as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in permitted by Section 56.11 hereof; and
(me) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent Bank shall have received notice from such Lender prior to other agreements, instruments, documents, certificates and opinions as the proposed Closing Date specifying its objection theretoBank may reasonably request.
Appears in 1 contract
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (ki) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (lj) and (mk) below have been satisfied (other than each item or condition listed on Schedule 7.1, which items or conditions are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Northstar Subsidiaries and the Concessioner SubsidiariesGrand Teton Lodge Company), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organizationorganization and each other state where it does business, each dated as of a recent dateafter January 1, 2011;
(g) Legal opinions of ▇F▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities General Counsel of VRI, ▇G▇▇▇▇▇, ▇D▇▇▇ & ▇C▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;; one of the foregoing opinions shall include opinions confirming that (i) the Debt incurred under this Agreement and the related Loan Papers (A) has been incurred or entered into in compliance with the requirements of the VRI Senior Subordinated Indenture, and (B) constitutes “Senior Debt” under the terms of the VRI Senior Subordinated Indenture, and (ii) this Agreement constitutes the “Credit Agreement” as such term is defined in the VRI Senior Subordinated Indenture.
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct)respects; (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 2010 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(mk) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇H▇▇▇▇▇ and ▇B▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunderLoan, and the L/C Issuers Agent will not be obligated to issue the initial L/Cs hereunderC, unless Administrative Agent has received each of the items in clauses (a) through - (kg) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses items (lh) and - (mi) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):satisfied:
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrowerthe Promissory Notes;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested Guaranty executed by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any each Restricted Company (other than Borrower) organized under the Laws of the United States (or or, for any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that Company which has previously executed a Guaranty, at Agent's election, a Confirmation of Guaranty executed consent or ratification by such Restricted CompanyCompany of its existing Guaranty;
(dc) from any Restricted Company organized under a Pledge Agreement executed by the Laws holder of the United States (or any state thereof) holding capital stock or other equity interests of any each Restricted Subsidiary (Company, other than stock those set out in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Post-Closing Agreement, pledging that capital stock or those interests, and a Pledge Agreement (or a ratification agreement) executed by such Person, pledging the portion Borrower in respect of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Personits interest in SSI;
(ed) an Officers’ ' Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(fe) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organizationorganization and each other state where it does business, each dated as of a recent dateafter September 15, 2001;
(gf) Legal opinions of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Senior Counsel, Corporate Governance & Securities General Counsel of VRI, and ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, Borrower;
(g) Borrower's audited consolidated and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agentconsolidating Financial Statements for 2001;
(h) a certificate signed by a Responsible Officer certifying that Payment in full of all amounts then due Agent under Section 8.7 or the fee letters described in Section 4; and
(i) all of Since July 31, 2001, no change has occurred in the representations and warranties business, assets, liabilities, operations, conditions (financial or otherwise) or prospects of the Companies and no Litigation or other proceeding or investigation in the Loan Papers are true and correct in all material respects (except to the extent qualified by materialityrespect of any Company has been initiated or threatened, which, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or either case, would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, constitute a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless (x) there have been no changes or developments in the information and projections provided by the Companies prior to the date hereof to Administrative Agent and Lenders in connection with the transactions contemplated hereby, (y) Administrative Agent and Lenders have not received or discovered new or additional information regarding the Companies that could reasonably be expected to cause a Material Adverse Event, and (z) Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item or condition, if any, listed on Schedule 7.1, which items or conditions are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws holder of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries)Company or SSI, as applicable, (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2interest, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organizationorganization and each other state where it does business, each dated as of a recent dateafter January 1, 2005;
(g) Forest Service Permit Agreements duly executed by the United States Department of Agriculture, Forest Service, the applicable Company, and Administrative Agent;
(h) Legal opinions of Martha Dugan Rehm, General Counsel of VRI, and Cahill Gordon & Reindel LLP, special New York counsel to Borrower and the other Restricted Subsidiaries, each in ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇e satisfactory to Administrati▇▇ ▇▇▇▇▇▇, ▇; ▇▇▇ & of ▇▇▇ ▇▇▇▇▇▇, LLP, special New York counsel to regoing opinions shall include opinions confirming that (i) the Restricted CompaniesDebt incurred under this Agreement and the related Loan Papers (A) has been incurred or entered into in compliance with the requirements of the Senior Subordinated Indenture, and (B) constitutes “Senior Debt” under the terms of the Senior Subordinated Indenture, and (ii) this Agreement constitutes the “Credit Agreement” as such local counsel as Administrative Agent shall request, each term is defined in form and substance satisfactory to Administrative Agent;the Senior Subordinated Indenture.
(hi) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct)respects; (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 2004 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event(A) materially and adversely affect the Companies, or (B) adversely affect any transaction contemplated hereby, the rights and remedies of Administrative Agent, Lenders, and the L/C Issuers hereunder, or the ability of the Companies or any other obligor under any Guaranty to perform their respective obligations under the Agreement;
(ij) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(jk) evidence, in form and substance satisfactory to Administrative Agent, that concurrently with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customerTerm Loans” under the Beneficial Ownership Regulation Existing Agreement shall deliverbe repaid in full, to each Lender that so requeststhe security interests of the “Term Loan Lenders” in the collateral shall be released, a Beneficial Ownership Certification in relation to such Borrowerand all obligations of Borrower with respect thereto shall be terminated;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of the Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ Haynes and ▇▇▇▇▇Boone, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel intern▇▇ ▇▇▇nsel (collectively▇▇▇▇ectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. The Lenders will shall not be obligated required to fund make the initial Loans Advance hereunder, or issue the initial Facility Letter of Credit hereunder, unless and until (a) the Borrower shall, prior to or concurrently therewith, have paid all fees due and payable to the Lenders and the Administrative Agent hereunder, and (b) the L/C Issuers will not be obligated Borrower shall have furnished to issue the initial L/Cs hereunder, unless Administrative Agent has received the following:
(a) The duly executed originals of this Agreement (with sufficient originals thereof for each of the items in clauses (a) through (k) belowLenders), each in form and substance satisfactory the Notes payable to Administrative Agent and each of the Lenders, the Guaranty, the Security Documents and any other additional Loan Documents, provided that Borrower may defer the effective date of the Collateral Assignment relating to the Pledged Equity Interests in the Partnership Interest Property known as Polaris Towne Center until the expiration of the advance notice period required under the Secured Indebtedness on such Partnership Interest Property, so long as Borrower has executed and delivered to the Administrative Agent in escrow an executed but undated version of such Collateral Assignment and the conditions in clauses (l) contributions of such Pledged Equity Interest to Collateral Pool LTV Amount and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to Adjusted Collateral Pool NOI shall be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrowerexcluded until such Collateral Assignment has become effective;
(bA) Certificates of good standing for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property from their states of organization, certified by the appropriate governmental officer and dated not more than sixty (i60) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable days prior to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a)Agreement Effective Date, and (iiiB) if requested foreign qualification certificates for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property, certified by either Swing Line Lender pursuant the appropriate governmental officer and dated not more than sixty (60) days prior to Section 3.1(a)the Agreement Effective Date, for each jurisdiction in which the executive offices of a Swing Line Note, payable to Loan Party is located and each jurisdiction in which a Mortgage Property or Partnership Interest Property owned by such Swing Line LenderLoan Party or other entity is located;
(c) from any Restricted Company (other than Borrower) organized under the Laws Copies of the United States formation documents (including code of regulations, if appropriate) of the Loan Parties and each entity directly or any state thereof) (i) that has not previously executed indirectly owning a GuarantyPartnership Interest Property, a Guaranty executed certified by an officer of the Borrower or such Restricted Companyother Loan Party or entity, or (ii) that has previously executed a Guarantyas appropriate, a Confirmation of Guaranty executed by such Restricted Companytogether with all amendments thereto;
(d) from any Restricted Company organized under the Laws Incumbency certificates, executed by officers of the United States (or any state thereof) holding capital stock or other equity interests Loan Parties, which shall identify by name and title and bear the signature of the Persons authorized to sign this Agreement and the additional Loan Documents and to make borrowings hereunder on behalf of such parties, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any Restricted Subsidiary (other than stock change in writing by the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Personapplicable Loan Party;
(e) Copies, certified by a Secretary or an OfficersAssistant Secretary of the applicable Loan Party, of the Board of Directors’ Certificate resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for each Restricted Companythe Administrative Agent) authorizing the Advances provided for herein, relating with respect to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutionsthe Borrower, and incumbencythe execution, as applicabledelivery and performance of this Agreement and the additional Loan Documents to be executed and delivered by the applicable Loan Party;
(f) Certificates A written opinion of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state the Loan Parties’ counsel, addressed to the Lenders in substantially the form of organization, each dated Exhibit E hereto or such other form as of a recent datethe Administrative Agent may reasonably approve;
(g) Legal opinions A certificate, signed by an Authorized Officer of ▇▇▇▇▇ ▇▇▇▇▇▇▇the Borrower, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to stating that on the Restricted CompaniesAgreement Effective Date no Default or Unmatured Default has occurred and is continuing, and such local counsel as Administrative Agent shall request, each in form there has been no Material Adverse Effect and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers Borrower are true and correct in all material respects (except to as of the extent qualified by materialityAgreement Effective Date, provided that such certificate is in which case they shall be fact true and correct); ;
(iih) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery The most recent financial statements of the Loan Papers or Borrower and the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse EventParent Entities;
(i) evidence that all insurance required to be maintained pursuant UCC financing statement searches with respect to the Borrower and each of the other Loan Papers has been obtained and is in effectParties from the state of its organization;
(j) with respect to any Lender that reasonably requests at least 5 days prior Written money transfer instructions, addressed to the Closing DateAdministrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Borrower shall Administrative Agent may have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.requested;
(k) at least 5 days prior to A pro forma compliance certificate in the Closing Dateform of Exhibit A, any Borrower that qualifies as a “legal entity customer” under utilizing the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such new covenants established herein and executed by the Borrower’s chief financial officer or chief operating officer;
(l) payment of Evidence that all fees payable on or prior due to each of the Closing Date Lenders with respect to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; andthis Agreement have been paid;
(m) unless waived Copies of a certified rent roll, leasing activity reports, tenant sales reports (if applicable), Major Leases, operating statements, title insurance commitments, surveys (which may be existing surveys accompanied by a certificate of no change from Borrower, if applicable), Appraisals for the Mortgage Properties dated not more than six (6) months prior to the Agreement Effective Date, a recent property condition report, flood zone determination (if not indicated on survey) and most recent engineering and “phase I” environmental assessments with respect to each Mortgage Property, estoppel certificates and subordination, non-disturbance and attornment agreements for Major Leases with respect to each Mortgage Property (in a form reasonably satisfactory to the Administrative Agent and to the extent available after reasonable collection efforts), together with insurance certificates satisfying the requirements of Section 5.16 below, and such other due diligence materials as the Administrative Agent shall reasonably require for each such Mortgage Property or Partnership Interest Property, in addition to a written opinion of the Borrower’s counsel (or a designated local counsel in the jurisdiction of the Mortgage Property) addressed to the Lenders in a form reasonably satisfactory to the Administrative Agent regarding each Security Document;
(n) Evidence that each of the Mortgages has been recorded and the applicable title company has committed to issue a title insurance policy insuring such Mortgage in an amount and form, and with such coverages and endorsements, as are all reasonably satisfactory to the Administrative Agent, ;
(o) Evidence in the form of an escrow and related undertakings from a title insurance company satisfactory to the Administrative Agent that all Indebtedness secured by the initial Collateral Pool Properties immediately prior to the Agreement Effective Date shall be repaid in full from the proceeds of the initial Advance hereunder.
(p) Evidence satisfactory of the Administrative Agent of payment in full of all reasonable fees, expenses, amounts due to any lenders under the Original Credit Agreement which are not continuing as Lenders hereunder and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplicationacceptance by them of the termination of their commitments thereunder.
(q) Such other documents as the Administrative Agent or its counsel may have reasonably requested, the form and substance of which documents shall be reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent acceptable to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower parties and Administrative Agent)their respective counsel. Without limiting the generality Upon satisfaction of the provisions foregoing conditions precedent and the funding of the last paragraph of Section 14.5initial Advance, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from execute and deliver to Borrower a release of any security interests created pursuant to any “Collateral Assignments” not continuing in effect hereunder or the “Account Pledge Agreement” (as such Lender prior to terms are defined in the proposed Closing Date specifying its objection theretoOriginal Credit Agreement) and terminations of any related UCC financing statements.
Appears in 1 contract
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each The obligation of the items Lenders to make any Advance under this Agreement is subject to the satisfaction, in clauses the sole discretion of the Agent, on or before the date thereof, of the following conditions precedent, save and except that Agent may, at its sole option, waive any one or more of the following conditions prior to the Initial Advance but such waiver shall not prevent Agent from requiring compliance of such condition(s) prior to any subsequent Advance to the extent set forth in a supplemental agreement entered into between the Borrower and Agent:
(a) through (k) belowEach of the Loan Documents shall have been duly executed and delivered by the respective parties thereto and, each shall be in full force and effect and shall be in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;.
(b) (i) UCC, tax lien and judgment searches of the appropriate public records for the Borrower that do not disclose the existence of any prior Lien on the Collateral other than in favor of Agent or as permitted under this Agreement, or other than a Lien in favor of any Person which Lien shall be terminated in accordance with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order provisions of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;this Agreement.
(c) Agent shall have received from any Restricted Company (other than Borrower) organized under the Laws Borrower a copy, certified as of a recent date by the appropriate officer of the United States (State in which such Person is organized to be true and complete, of the corporate charter and any other organization documents of such Person as in effect on such date of certification. The Borrower shall furnish evidence satisfactory to the Agent that they are each duly qualified and in good standing in each jurisdiction in which it owns or any state thereof) (i) that has leases property or in which the conduct of its business requires it to so qualify, except where the failure to so qualify could not previously executed have a Guarantymaterially adverse effect on the business, a Guaranty executed by such Restricted Companyassets, or (ii) that has previously executed a Guaranty, a Confirmation financial condition of Guaranty executed by such Restricted Company;the Borrower.
(d) Agent shall have received from any Restricted Company organized under the Laws Borrower financial statements of the United States Borrower (or any state thereofand its Subsidiaries, on a consolidated basis) holding capital stock or other containing a balance sheet as of December 31, 2007 (the “Statement Date”) and related statements of income, changes in stockholders’ equity interests and cash flows for the period ended on the Statement Date and a balance sheet as of any Restricted Subsidiary March 31, 2008 (other than stock “Interim Date”) and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the North Star Subsidiaries case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Agent, together with an Officer Certificate prepared as of the Interim Date and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging any officer of the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;Borrower.
(e) an Officers’ Certificate for each Restricted Company, relating UCC financing statements naming the Borrower as debtor and the Agent as secured party covering the Collateral shall have been duly recorded and filed to articles the satisfaction of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, Agent and incumbency, as applicable;its counsel.
(f) Certificates Agent shall have received evidence, in form, scope and substance and with such insurance carriers, satisfactory to the Agent, for all insurance policies required under any of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;the Loan Documents.
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they There shall be true and correct); (ii) no Default pending or Potential Default exists under threatened litigation involving the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that Borrower which could reasonably be expected to result in a Material Adverse Event;Change, and no judgment, order, injunction or other similar injunction or other similar restraint prohibiting any of the transactions contemplated hereby shall exist.
(h) All action on the part of the Borrower necessary for the valid execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents shall have been duly and effectively taken, and evidence thereof satisfactory to the Agent shall have been provided to the Agent. Agent shall have received from the Borrower true copies of resolutions adopted by the their respective boards of directors authorizing the transactions described herein, each certified by each of their secretaries as of a recent date to be true and complete.
(i) evidence that all insurance required Agent shall have received from the Borrower an incumbency certificate, dated as of the Closing Date, signed by a duly authorized officer of the Borrower and giving the name and bearing a specimen signature of each individual who shall be an Authorized Representative: (a) to be maintained pursuant sign, in the name and on behalf of such Person, each of the Loan Documents to which such Person is or is to become a party; (b) with respect to the Borrower, to make requests for Advances; and (c) to give Notices and to take other action on behalf of the Borrower under the Loan Papers has been obtained and is in effect;Documents.
(j) with respect to any Lender that reasonably requests at least 5 days prior Agent shall have received a favorable written opinion of counsel to the Borrower, dated as of the Closing DateDate in form, scope, and substance satisfactory to the Agent, addressed to the Agent and the Lenders.
(k) Copies of the certificates, documents or other written instruments that evidence the Borrower’s eligibility described in Section 5.11, together with copies of all seller/servicer contracts to which the Borrower is a party, all in form and substance satisfactory to Agent.
(l) Borrower shall have paid to the Agent all fees and expenses required pursuant to this Agreement and the other Loan Documents.
(m) The Agent shall be satisfied that (i) the Borrower has obtained all material and appropriate authorizations and approvals of all governmental authorities (including, without limitation, any approvals required by any of F▇▇▇▇▇ M▇▇, FHA, F▇▇▇▇▇▇ Mac, G▇▇▇▇▇ M▇▇, HUD), required for the due execution, delivery and performance by the Borrower of each of the Loan Documents and for the perfection of or the exercise by the Agent and each Lender of their respective rights and remedies under the Loan Documents, and (ii) all transactions contemplated hereby shall be in material compliance with, and the Borrower shall have provided to such Lenderobtained all material and appropriate approvals pertaining to, all applicable laws, rules, regulations and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulationsorders, including, without limitation, all governmental, environmental, ERISA, retiree health benefits, workers’ compensation and other requirements, regulations and laws and shall not contravene any charter, by-law, debt instrument or other material contact or agreement to which Borrower is a party.
(n) No Material Adverse Change shall have occurred since the Act, in each case at least 3 days prior to Statement Date and the Closing Interim Date.
(ko) at least 5 days prior Borrower shall have provided such additional instruments and documents to the Closing Date, any Borrower that qualifies Agent and the Lenders as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to Agent and the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to counsel may have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)
Initial Advance. Lenders will not be obligated At or prior to fund the making of the initial Loans extension of credit hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the following conditions in clauses (l) and (m) below precedent shall also have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):satisfied:
(a) an executed counterpart of this Agreementthe Bank shall have received the following (and, sufficient in number for distribution with respect to Administrative Agentall documents, each Lenderto be properly executed and completed) and the same shall have been approved as to form and substance by the Bank:
(i) the Note;
(ii) the Guaranty;
(iii) copies (executed or certified as may be appropriate) of resolutions of the Board of Directors or other governing body of the Borrower and of each Subsidiary Guarantor authorizing the execution, delivery, and performance of the Loan Documents;
(iv) articles of incorporation (or equivalent formation documents) of the Borrower and of each Subsidiary Guarantor certified by the appropriate governmental office of the state of its organization;
(v) by-laws (or equivalent governing documents) for the Borrower and for each Subsidiary Guarantor certified by an appropriate officer of such Person acceptable to the Bank;
(vi) an incumbency certificate containing the name, title and genuine signature of the Borrower's Authorized Representatives; and
(vii) a good standing certificate for the Borrower and each Subsidiary, dated as of a date no earlier than 30 days prior to the date hereof, from the appropriate governmental offices in the state of its incorporation or organization and in each state in the United States in which it is qualified to do business as a foreign organization;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated Bank shall have received the closing fees specified in Section 3.1(a), (ii2.13(c) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lenderhereof;
(c) from any Restricted Company (other than Borrower) organized under the Laws of Bank shall have received the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted CompanyIntercreditor Agreement;
(d) from any Restricted Company organized under the Laws Bank shall have received such valuations and certifications as it may require in order to satisfy itself as to the financial condition of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries Borrower and its Subsidiaries, and the Concessioner lack of material contingent liabilities of the Borrower and its Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating legal matters incident to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; Documents and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably transactions contemplated hereby shall be expected satisfactory to result in a Material Adverse Eventthe Bank and its counsel;
(if) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained Bank shall have received financing statement, tax and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to judgment lien search results against the Closing Date, Property of the Borrower shall have provided to such Lenderand its Subsidiaries, and such Lender shall be reasonably satisfied with, evidencing the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies absence of Liens on their Property except as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in permitted by Section 56.11 hereof; and
(mg) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent Bank shall have received notice from such Lender prior to other agreements, instruments, documents, certificates and opinions as the proposed Closing Date specifying its objection theretoBank may reasonably request.
Appears in 1 contract
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each The obligation of the items Lenders to make any Advance under this Agreement is subject to the satisfaction, in clauses the sole discretion of the Agent, on or before the date thereof, of the following conditions precedent, save and except that Agent may, at its sole option, waive any one or more of the following conditions prior to the Initial Advance but such waiver shall not prevent Agent from requiring compliance of such condition(s) prior to any subsequent Advance to the extent set forth in a supplemental agreement entered into between the Borrower and Agent:
(a) through (k) belowEach of the Loan Documents shall have been duly executed and delivered by the respective parties thereto and, each shall be in full force and effect and shall be in form and substance satisfactory to Administrative Agent and each of the Lenders.
(b) UCC, tax lien and judgment searches of the appropriate public records for the Borrower that do not disclose the existence of any prior Lien on the Collateral other than in favor of Agent or as permitted under this Agreement, or other than a Lien in favor of any Person which Lien shall be terminated in accordance with the provisions of this Agreement.
(c) Agent shall have received from the Borrower a copy, certified as of a recent date by the appropriate officer of the State in which such Person is organized to be true and complete, of the corporate charter and any other organization documents of such Person as in effect on such date of certification. The Borrower shall furnish evidence satisfactory to the Agent that they are each duly qualified and in good standing in each jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify, except where the failure to so qualify could not have a materially adverse effect on the business, assets, or financial condition of the Borrower.
(d) Agent shall have received from the Borrower financial statements of the Borrower (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 2006 (the "Statement Date") and related statements of income, changes in stockholders' equity and cash flows for the period ended on the Statement Date and a balance sheet as of March 31, 2007 ("Interim Date") and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Agent, together with an Officer Certificate prepared as of the Interim Date and executed by any officer of the Borrower.
(e) UCC financing statements naming the Borrower as debtor and the Agent as secured party covering the Collateral shall have been duly recorded and filed to the satisfaction of Agent and its counsel.
(f) Agent shall have received evidence, in form, scope and substance and with such insurance carriers, satisfactory to the Agent, for all insurance policies required under any of the Loan Documents.
(g) There shall be no pending or threatened litigation involving the Borrower which, in the judgment of the Agent, could have a material adverse effect on such Person or the ability of the Borrower to perform its obligations under the Loan Documents to which it is a party, and no judgment, order, injunction or other similar injunction or other similar restraint prohibiting any of the conditions in clauses transactions contemplated hereby shall exist.
(lh) All action on the part of the Borrower necessary for the valid execution, delivery and (m) below performance by the Borrower of this Agreement and the other Loan Documents shall have been satisfied (other than duly and effectively taken, and evidence thereof satisfactory to the Agent shall have been provided to the Agent. Agent shall have received from the Borrower true copies of resolutions adopted by the their respective boards of directors authorizing the transactions described herein, each item listed on Schedule 7.1, which items are hereby permitted certified by each of their secretaries as of a recent date to be delivered or satisfied after true and complete.
(i) Agent shall have received from the Borrower an incumbency certificate, dated as of the Closing Date, but not later than signed by a duly authorized officer of the respective dates for delivery or satisfaction specified on Schedule 7.1):
Borrower and giving the name and bearing a specimen signature of each individual who shall be an Authorized Representative: (a) an executed counterpart to sign, in the name and on behalf of this Agreement, sufficient in number for distribution to Administrative Agentsuch Person, each Lender, and Borrower;
of the Loan Documents to which such Person is or is to become a party; (b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant the Borrower, to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), make requests for Advances; and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (to give notices and to take other than Borrower) organized action on behalf of the Borrower under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;Loan Documents.
(dj) from any Restricted Company organized under Agent shall have received a favorable written opinion of counsel to the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries)Borrower, (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;the Closing Date in form, scope, and substance satisfactory to the Agent, addressed to the Agent and the Lenders.
(gk) Legal opinions Copies of ▇▇▇▇▇ ▇▇▇▇▇▇▇the certificates, Senior Counseldocuments or other written instruments that evidence the Borrower's eligibility described in Section 5.11, Corporate Governance & Securities together with copies of VRIall seller/servicer contracts to which the Borrower is a party, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each all in form and substance satisfactory to Administrative Agent;.
(hl) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except Borrower shall have paid to the extent qualified by materiality, in which case they shall be true Agent all fees and correct); (ii) no Default or Potential Default exists under expenses required pursuant to this Agreement and the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the other Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;Documents.
(im) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, additional instruments and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior documents to the Closing DateAgent and the Lenders as the Agent and the Agent's counsel may have reasonably requested.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)
Initial Advance. Lenders will not be obligated At or prior to fund the making of the initial Loans extension of credit hereunder, the following conditions precedent shall also have been satisfied:
(a) the Bank shall have received the following (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Bank:
(i) the Revolving Credit Note;
(ii) the Collateral Documents, including the lockbox agreement required pursuant to Section 4.2 hereof (including, without limitation, all certificates evidencing the Company's Kaneb MLP Units being pledged under the Collateral Assignment of MLP Units, together with executed blank stock powers therefor, and all financing statements requested by the Bank in connection with the Collateral Documents);
(iii) copies (executed or certified, as may be appropriate) of all legal documents or proceedings taken in connection with the execution and delivery of this Agreement and the other Loan Documents to the extent the Bank or its counsel may reasonably request;
(iv) an incumbency certificate containing the name, title and genuine signatures of each of the Company's Authorized Representatives;
(v) evidence of insurance required by Section 8.4 hereof;
(vi) a written consent from Mart▇▇ ▇▇ the collateral assignment of the Company's rights under the Purchase Agreement and related documents as security for the Obligations;
(vii) an agreement from Kaneb Company to redeem the Company's Kaneb MLP Units of the type contemplated by clause (b) of the definition of the term "Freely Tradeable";
(viii) a payoff letter from Bank of America Illinois setting forth the amount of indebtedness and obligations owed it by Mart▇▇ ▇▇▇ containing its agreement to release its Liens upon receipt of such payoff amount; and
(ix) except to the extent waived in writing by the Bank, agreements providing the Bank access to inventory of the Company located in storage facilities not owned by the Company.
(b) the Bank shall have received the initial fees called for hereby;
(c) the Bank shall have received such valuations and certifications as it may require in order to satisfy itself as to the value of the Collateral, the financial condition of the Company and its Subsidiaries, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each lack of material contingent liabilities of the items in clauses Company and its Subsidiaries;
(ad) through (k) belowlegal matters incident to the execution and delivery of the Purchase Agreement, each this Agreement and the other Loan Documents and to the transactions contemplated hereby and thereby shall be satisfactory to the Bank and its counsel; and the Bank shall have received the favorable written opinion of counsel for the Company in form and substance satisfactory to Administrative Agent the Bank and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Personits counsel;
(e) the Bank shall have received a Borrowing Base certificate in the form attached hereto as Exhibit C showing the computation of the Borrowing Base in reasonable detail as of the close of business not earlier than March 23, 1998 and showing, among other things, excess availability of at least $500,000 after deeming as borrowed hereunder an Officers’ Certificate for each Restricted amount equal to all but $100,000 of the Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable's accounts payable over sixty (60) days past due;
(f) Certificates the Bank shall have received a copy of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organizationthe Purchase Agreement, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent which agreement shall request, each be in form and substance satisfactory to Administrative Agentthe Bank and its counsel;
(g) all conditions precedent to the Mart▇▇ ▇▇▇uisition shall have been satisfied except for the Bank's funding of the purchase price for the Mart▇▇ ▇▇▇uisition and the Bank shall have received assurances satisfactory to it of the foregoing;
(h) a certificate signed by a Responsible Officer certifying that (i) all the Company shall have common stock and paid-in equity capital of at least $8,000,000 immediately prior to consummation of the representations and warranties Mart▇▇ ▇▇▇uisition as a result of equity contributions to the Companies Company from Kaneb Company in the Loan Papers form of at least $2,500,000 in cash and the remainder in Kaneb MLP Units which are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse EventFreely Tradeable;
(i) evidence that all insurance required to be maintained pursuant the Bank shall have received a good standing certificate for the Company (dated as of the date no earlier than thirty (30) days prior to the Loan Papers has been obtained date hereof) from the office of the secretary of state of the state of its incorporation and each state in which it is in effectqualified to do business as a foreign corporation;
(j) with respect to any Lender that reasonably requests at least 5 days prior the Liens granted to the Closing Date, Bank under the Borrower Collateral Documents shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested been perfected in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior a manner satisfactory to the Closing Date.Bank and its counsel;
(k) at least 5 days prior the Bank shall have received evidence satisfactory to it that $2,000,000 of the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;Bonding Requirement is satisfied; and
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent Bank shall have received notice from such Lender prior to other agreements, instruments, documents, certificates and opinions as the proposed Closing Date specifying its objection theretoBank may reasonably request.
Appears in 1 contract
Initial Advance. Lenders will Notwithstanding any other provisions of --------------- this Agreement and without affecting in any manner the rights of the Lender hereunder, the Borrower shall have no rights under this Agreement (but shall have all applicable obligations hereunder), and the Lender shall not be obligated to fund the initial Loans make any Advances or incur Letter of Credit Obligations, or to take, fulfill, or perform any other action hereunder, and until the L/C Issuers will not be obligated to issue following conditions have been satisfied, in the initial L/Cs hereunderLender's sole discretion, unless Administrative Agent has received each of or waived in writing by the items in clauses Lender:
(a) through This Agreement or counterparts thereof shall have been duly executed by, and delivered to, the Lender and the Borrower.
(kb) belowThe Lender shall have received such documents, instruments and agreements as the Lender shall request in connection with the transactions contemplated by this Agreement, including all documents, instruments, agreements listed in the Schedule of Documents, each in form and substance satisfactory to Administrative Agent the Lender.
(c) Evidence, satisfactory to the Lender, that the Borrower and each of the Lendersits Subsidiaries has obtained consents and acknowledgments of all Persons whose consents and acknowledgments may be required, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Dateincluding, but not later than limited to, all requisite Governmental Authorities, to the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart terms, and to the execution and delivery, of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, the Loan Documents and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws consummation of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;transactions contemplated hereby and thereby.
(d) from any Restricted Company organized under Evidence satisfactory to the Laws Lender that the insurance policies provided for in Section 4.26 and Schedule "4.26" are in full force and effect, ------------ --------------- together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements, as appropriate, in favor of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries Lender and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(ke) at least 5 days prior to Payment by the Borrower of the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services Fee and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoTransaction Expenses.
Appears in 1 contract
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (ki) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (lj) and (mk) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent dateafter February 17, 2014;
(g) Legal opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities General Counsel of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 2013 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(mk) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities General Counsel of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Initial Advance. Lenders will not be obligated The obligation of the Banks to fund make the initial Loans hereunderAdvance is subject to the satisfaction, and in the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each sole discretion of the items in clauses Banks, on or before the date thereof of the following conditions precedent:
(a) through The Banks shall have received counterparts of the following, all of which must be satisfactory in form and content to the Agent, in its sole discretion:
(k1) belowThe Notes duly executed by the Company;
(2) The Guarantees, in the form attached hereto as Exhibit B, duly executed by the Guarantors;
(3) Certified copies of the Company's articles of incorporation and bylaws, and certificates of good standing dated no less recently than three (3) months prior to the date of the initial Advance;
(4) A written opinion of counsel to the Company and the Guarantors (or of separate counsel at the option of the Company and the Guarantors) in form and content satisfactory to the Banks, dated as of, or prior to, the date of the initial Advance, addressed to the Banks and the Agent, substantially in the form attached hereto as Exhibit I.
(5) An original resolution of the board of directors of each of PMC and RF Properties, certified as of the date of the initial Advance by its corporate secretary, authorizing the execution, delivery and performance of this Agreement and the Notes, and all other instruments or documents to be delivered by the Company pursuant to this Agreement;
(6) A certificate of the Company's corporate secretary as to the incumbency and authenticity of the signatures of the officers of the Company executing this Agreement and the Notes and each Advance Request and all other instruments or documents to be delivered pursuant hereto (the Agent being entitled to rely thereon until a new such certificate has been furnished to the Banks);
(7) Original independently audited financial statements of the Company (and their Subsidiaries, on a consolidated basis) for the most recent fiscal year end containing a balance sheet and related statements of income and retained earnings (the "Statement Date") and changes in financial position for the period ended on the Statement Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and acceptable to the Banks;
(8) Financial statements of the Guarantors, signed by them, dated no less recently than three (3) months prior to the date of the initial Advance;
(9) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to Administrative Agent the Agent;
(10) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, all in form and content satisfactory to the Agent, showing compliance by the Company as of the date of the initial Advance with the related provisions of Section 6.8 hereof;
(11) With respect to each Advance, a copy of irrevocable instructions to the Investor stating that payment for the Mortgage Loan will be remitted to the Banks in the form of Exhibit J;
(12) A power of attorney in the form of Exhibit K; and
(13) A Master Bailee Agreement for Foreclosure Loans in the form of Exhibit L.
(b) At the sole discretion of the Banks, the Banks may require any director, officer or shareholder of the Company, all Affiliates of the Company or of any Subsidiary of the Company, and each of the LendersGuarantors, and to whom or to any of whom the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to Company shall be delivered or satisfied after indebted as of the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart date of this Agreement, sufficient to execute a Subordination of Debt Agreement, in number for distribution to Administrative Agentthe form of Exhibit F hereto; and the Banks shall have received an executed copy of said Subordination of Debt Agreement, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to certified by the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws corporate secretary of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution complete and delivery in full force and effect as of the Loan Papers or the proposed funding date of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing DateAdvance.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (PMCC Financial Corp)
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each The obligation of the items in clauses (a) through (k) belowBank to make any Advance under this Loan Agreement for a Mortgage Loan is subject to the Bank's receipt of the following, each all of which must be reasonably satisfactory in form and substance satisfactory content to Administrative Agent and each of the LendersBank, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):its sole discretion:
(a) an The Note duly executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrowerby the Company;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a)The Guaranty, a Revolver Notein the form attached hereto as Exhibit A, payable to duly executed by the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line LenderGuarantor;
(c) from Executed Assignments of Notes and Mortgages in the form attached hereto as Exhibit E, to be recorded upon the occurrence of any Restricted Company (other than Borrower) organized under the Laws Event of the United States (Default hereunder or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Companymutually agreed upon electronic alternative thereto;
(d) from any Restricted Company organized under the Laws Certified copies of the United States (or any state thereof) holding capital stock or other equity interests Company's articles of any Restricted Subsidiary (other than stock in incorporation and bylaws, and certificates of existence delivered to the North Star Subsidiaries and Bank prior to the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion date of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Personclosing;
(e) an Officers’ Certificate for each Restricted A resolution of the board of directors of the Company, relating certified as of a date prior to articles the initial Advance by its Secretary, authorizing the execution, delivery and performance of incorporation or organization, bylaws, regulations, or operating agreements, resolutionsthis Loan Agreement and the Note, and incumbency, as applicableall other instruments or documents to be delivered by the Company pursuant to this Loan Agreement;
(f) Certificates A certificate of Existence the Company's corporate secretary as to the incumbency and Good Standing authenticity of the signatures of the officers of the Company executing this Loan Agreement and the Note and each Advance Request and all other instruments or documents to be delivered pursuant hereto (Account Status) for each domestic Restricted Company from its state of organization, each dated as of the Bank being entitled to rely thereon until a recent datenew such certificate has been furnished to the Bank);
(g) Legal opinions Audited financial statements of ▇▇▇▇▇ ▇▇▇▇▇▇▇the Company (and its Subsidiaries, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each on a consolidated basis) prepared by a Certified Public Accountant in form and substance reasonably satisfactory to Administrative Agentthe Bank, which shall include, but not be limited to, a statement of income for the period ending on December 31, 2003 (the "Statement Date");
(h) a A certificate signed by a Responsible Officer certifying that (i) all of insurance evidencing the representations Company's errors and warranties omissions insurance policy in an amount of the Companies in the Loan Papers are true at least $500,000.00, each loss and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required An executed, original opinion of the Company's counsel, in form and substance reasonably acceptable to be maintained pursuant Bank, opining, among other things, as to the enforceability of the Loan Papers has been obtained Agreement, the Note and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior the financing statements, against the Company, and as to the Closing Date, enforceability of the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, guaranties against the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5Guarantor; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Warehouse Credit and Security Agreement (Community Bankshares Inc /Sc/)
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered On or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided delivered to such LenderAgent the following:
(a) executed copies of the Loan Documents (other than the Warrant, which shall be an original), Account Control Agreements, and such Lender shall be all other documents and instruments reasonably satisfied withrequired by Agent to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral, in all cases in form and substance reasonably acceptable to Agent;
(b) certified copy of resolutions of Borrower’s Board evidencing approval of (i) the documentation Loan and other information so requested in connection with applicable “know your customer” transactions evidenced by the Loan Documents; and anti-money-laundering rules (ii) the Warrant and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.transactions evidenced thereby;
(kc) at least 5 days prior to certified copies of the Certificate of Incorporation and the Bylaws, as amended through the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such of Borrower;
(ld) a certificate of good standing for Borrower from its state of incorporation and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified would have a Material Adverse Effect;
(e) evidence that the Loan and Security Agreement dated as of December 21, 2015, by and among Borrower, Titan Multi-Strategy Fund I, Ltd. and the investors listed on Annex A thereto, together with all documents and agreements executed in connection therewith, shall have been terminated and all amounts thereunder shall have been paid in full;
(f) evidence that (i) the Lien securing Indebtedness owed by Borrower to Titan Multi-Strategy Fund I, Ltd. (Security Agent) will be terminated and (ii) the documents and/or filings evidencing the perfection of such Lien, including without limitation any financing statements and/or control agreements, have been terminated;
(g) payment of all fees payable on or prior the Due Diligence Fee, the Facility Charge and reimbursement of Agent’s and Lender’s current expenses reimbursable pursuant to this Agreement, which amounts may be deducted from the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5initial Advance; and
(mh) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the such other documents as Agent may reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequest.
Appears in 1 contract
Initial Advance. Lenders will not be obligated On or prior to fund the Closing Date or initial Loans hereunderAdvance, and to the L/C Issuers will not be obligated extent indicated below, Borrowers shall have delivered to issue Agent the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses following:
(a) through (k) belowduly executed copies of the following, each in form and substance satisfactory acceptable to Administrative Agent Agent:
(i) this Agreement;
(ii) the completed ACH Authorization;
(iii) the intellectual property security agreement;
(iv) Account Control Agreements with respect to all Deposit Accounts and any accounts where Investment Property is maintained, as required by Section 7.12 hereof, prior to the initial Advance;
(v) a duly executed certificate of an officer of each Borrower certifying and attaching copies of (A) the Charter, certified as of a recent date by the jurisdiction of organization of such Borrower; (B) the bylaws, operating agreement or similar governing document of such Borrower; (C) resolutions of such Borrower’s Board or consent of sole member evidencing approval of (1) the Loan and other transactions contemplated by the Loan Documents, and with respect to Parent, (2) the Warrant and issuance of Equity Interests in accordance with its terms; (D) resolutions of the Lendersholders of such Borrower’s Equity Interests in connection with the transactions contemplated by this Agreement, and to the conditions extent required pursuant to the terms of the Charter or other governing document, in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1case, which items are hereby permitted to be delivered or satisfied after as in effect as of the Closing Date, but not later than and (E) a schedule setting forth the respective dates for delivery name, title and specimen signature of officers or satisfaction specified other authorized signers on Schedule 7.1):
(a) an executed counterpart behalf of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(bvi) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order legal opinion of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line LenderBorrowers’ counsel;
(cvii) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guarantysubordination agreement, a Guaranty duly executed by such Restricted Companyeach of Blue Flame Capital, or (ii) that has previously executed a GuarantyLLC, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of Lo▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇ ▇nd Ra▇▇▇ ▇▇▇▇▇▇;
(viii) a subordination agreement, ▇▇▇▇ & ▇▇▇▇▇▇▇▇duly executed by Halcyon Consulting, LLPLLC;
(ix) an Inventory Financing Intercreditor Agreement, special New York counsel duly executed by Ally Bank and Ally Financial Inc.;
(x) any other Loan Documents (other than the Warrant, which shall be delivered pursuant to subsection (b) below);
(xi) and all other documents and instruments reasonably required by Agent to effectuate the Restricted Companiestransactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral (provided that no certificates of title need be delivered or endorsed);
(b) Originals of the following, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory acceptable to Administrative Agent:
(i) the Warrant, and
(ii) any certificates evidencing Shares pledged pursuant to Section 3.3, together with any unit powers or other instruments of transfer;
(hc) a certificate signed by of good standing for each Borrower from its state of incorporation and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified could have a Responsible Officer certifying that Material Adverse Effect;
(id) payment of the Facility Charge and reimbursement of Agent’s and Lender’s current expenses reimbursable pursuant to this Agreement, which amounts may be deducted from the initial Advance;
(e) all certificates of the representations insurance, endorsements, and warranties copies of the Companies in the Loan Papers are true and correct in all material respects (each insurance policy required pursuant to Section 6.2, except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to after the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for is permitted in accordance with Section 57.24; and
(mf) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the such other documents as Agent may reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequest.
Appears in 1 contract
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower▇▇▇▇▇▇▇▇;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), and (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty), a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Northstar Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 2023 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower ▇▇▇▇▇▇▇▇ and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. Lenders will not The obligation of the Lender to make the --------------- initial Advance hereunder is subject to the satisfaction, as determined by the Lender in its sole discretion, of the following conditions precedent:
(a) The Lender shall have received the following, all of which must be obligated satisfactory in form and content to fund the initial Loans hereunderLender, and in its sole discretion:
(1) The Note duly executed by the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received Company;
(2) A guaranty from each of the items Guarantors (collectively, the "Guaranty");
(3) Certified copies of the Company's articles of incorporation and bylaws and a certificate of good standing dated no less recently than one (1) month prior to the date hereof;
(4) A written opinion of counsel to the Company and each of the Guarantors, in clauses form and content satisfactory to the Lender in its sole discretion, dated as of the date hereof;
(a5) through An original resolution of the board of directors of the Company, certified as of the date hereof by its corporate secretary, authorizing the execution, delivery and performance of this Agreement and the Note, and all other instruments or documents to be delivered by the Company pursuant to this Agreement;
(k6) belowA certificate of the Company's corporate secretary as to the incumbency and authenticity of the signatures of the officers of the Company executing this Agreement and the Note and each Advance Request and all other instruments or documents to be delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender);
(7) Original independently audited financial statements of the Company (and its Subsidiaries, on a consolidated basis) for the most recent fiscal year end (the "Statement Date"), containing a balance sheet and related statements of income and retained earnings and changes in financial position for the period ended on the Statement Date, all prepared in accordance with GAAP, applied on a basis consistent with prior periods, and otherwise acceptable to the Lender;
(8) Financial statements of each of the Guarantors, signed by them, dated no less recently than three (3) months prior to the date of the initial Advance;
(9) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, ------------ all in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c10) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a GuarantyCopies Purchase Commitments with Investors which have sufficient availability, a Guaranty executed by such Restricted Companyin Lender's sole discretion, or (ii) that has previously executed a Guarantytogether with and certificates, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock documents or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Personwritten instruments related thereto;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Preferred Credit Corp)
Initial Advance. The Lenders will shall not be obligated required to fund make the initial Loans Advance hereunder, or issue the initial Facility Letter of Credit hereunder, unless and until (a) the Borrower shall, prior to or concurrently therewith, have paid all fees due and payable to the Lenders and the Administrative Agent hereunder, and (b) the L/C Issuers will not be obligated Borrower shall have furnished to issue the initial L/Cs hereunder, unless Administrative Agent has received the following:
(a) The duly executed originals of this Agreement (with sufficient originals thereof for each of the items in clauses (a) through (k) belowLenders), each in form and substance satisfactory the Notes payable to Administrative Agent and each of the Lenders, the Guaranty, the Security Documents and any other additional Loan Documents, provided that Borrower may defer the effective date of the Collateral Assignment relating to the Pledged Equity Interests in the Partnership Interest Property known as Polaris Towne Center until the expiration of the advance notice period required under the Secured Indebtedness on such Partnership Interest Property, so long as Borrower has executed and delivered to the Administrative Agent in escrow an executed but undated version of such Collateral Assignment and the conditions in clauses (l) contributions of such Pledged Equity Interest to Collateral Pool LTV Amount and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to Adjusted Collateral Pool NOI shall be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrowerexcluded until such Collateral Assignment has become effective;
(bA) Certificates of good standing for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property from their states of organization, certified by the appropriate governmental officer and dated not more than sixty (i60) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable days prior to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a)Agreement Effective Date, and (iiiB) if requested foreign qualification certificates for the Loan Parties and for each entity directly or indirectly owning a Partnership Interest Property, certified by either Swing Line Lender pursuant the appropriate governmental officer and dated not more than sixty (60) days prior to Section 3.1(a)the Agreement Effective Date, for each jurisdiction in which the executive offices of a Swing Line Note, payable to Loan Party is located and each jurisdiction in which a Mortgage Property or Partnership Interest Property owned by such Swing Line LenderLoan Party or other entity is located;
(c) from any Restricted Company (other than Borrower) organized under the Laws Copies of the United States formation documents (including code of regulations, if appropriate) of the Loan Parties and each entity directly or any state thereof) (i) that has not previously executed indirectly owning a GuarantyPartnership Interest Property, a Guaranty executed certified by an officer of the Borrower or such Restricted Companyother Loan Party or entity, or (ii) that has previously executed a Guarantyas appropriate, a Confirmation of Guaranty executed by such Restricted Companytogether with all amendments thereto;
(d) from any Restricted Company organized under the Laws Incumbency certificates, executed by officers of the United States (or any state thereof) holding capital stock or other equity interests Loan Parties, which shall identify by name and title and bear the signature of the Persons authorized to sign this Agreement and the additional Loan Documents and to make borrowings hereunder on behalf of such parties, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any Restricted Subsidiary (other than stock change in writing by the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Personapplicable Loan Party;
(e) Copies, certified by a Secretary or an OfficersAssistant Secretary of the applicable Loan Party, of the Board of Directors’ Certificate resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for each Restricted Companythe Administrative Agent) authorizing the Advances provided for herein, relating with respect to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutionsthe Borrower, and incumbencythe execution, as applicabledelivery and performance of this Agreement and the additional Loan Documents to be executed and delivered by the applicable Loan Party;
(f) Certificates A written opinion of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state the Loan Parties’ counsel, addressed to the Lenders in substantially the form of organization, each dated Exhibit E hereto or such other form as of a recent datethe Administrative Agent may reasonably approve;
(g) Legal opinions A certificate, signed by an Authorized Officer of ▇▇▇▇▇ ▇▇▇▇▇▇▇the Borrower, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to stating that on the Restricted CompaniesAgreement Effective Date no Default or Unmatured Default has occurred and is continuing, and such local counsel as Administrative Agent shall request, each in form there has been no Material Adverse Effect and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers Borrower are true and correct in all material respects (except to as of the extent qualified by materialityAgreement Effective Date, provided that such certificate is in which case they shall be fact true and correct); ;
(iih) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery The most recent financial statements of the Loan Papers or Borrower and the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse EventParent Entities;
(i) evidence that all insurance required to be maintained pursuant UCC financing statement searches with respect to the Borrower and each of the other Loan Papers has been obtained and is in effectParties from the state of its organization;
(j) with respect to any Lender that reasonably requests at least 5 days prior Written money transfer instructions, addressed to the Closing DateAdministrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Borrower shall Administrative Agent may have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.requested;
(k) at least 5 days prior to A pro forma compliance certificate in the Closing Dateform of Exhibit A, any Borrower that qualifies as a “legal entity customer” under utilizing the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such new covenants established herein and executed by the Borrower’s chief financial officer or chief operating officer;
(l) payment of Evidence that all fees payable on or prior due to each of the Closing Date Lenders with respect to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; andthis Agreement have been paid;
(m) unless waived Copies of a certified rent roll, leasing activity reports, tenant sales reports (if applicable), Major Leases, operating statements, title insurance commitments, surveys (which may be existing surveys accompanied by a certificate of no change from Borrower, if applicable), Appraisals for the Mortgage Properties dated not more than six (6) months prior to the Agreement Effective Date, a recent property condition report, flood zone determination (if not indicated on survey) and most recent engineering and “phase I” environmental assessments with respect to each Mortgage Property, estoppel certificates and subordination, non-disturbance and attornment agreements for Major Leases with respect to each Mortgage Property (in a form reasonably satisfactory to the Administrative Agent and to the extent available after reasonable collection efforts), together with insurance certificates satisfying the requirements of Section 5.16 below, and such other due diligence materials as the Administrative Agent shall reasonably require for each such Mortgage Property or Partnership Interest Property, in addition to a written opinion of the Borrower’s counsel (or a designated local counsel in the jurisdiction of the Mortgage Property) addressed to the Lenders in a form reasonably satisfactory to the Administrative Agent regarding each Security Document;
(n) Evidence that each of the Mortgages has been recorded and the applicable title company has committed to issue a title insurance policy insuring such Mortgage in an amount and form, and with such coverages and endorsements, as are all reasonably satisfactory to the Administrative Agent, ;
(o) Evidence in the form of an escrow and related undertakings from a title insurance company satisfactory to the Administrative Agent that all Indebtedness secured by the initial Collateral Pool Properties immediately prior to the Agreement Effective Date shall be repaid in full from the proceeds of the initial Advance hereunder.
(p) Evidence satisfactory of the Administrative Agent of payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplicationamounts due to any lenders under the Original Credit Agreement which are not continuing as Lenders hereunder.
(q) Such other documents as the Administrative Agent or its counsel may have reasonably requested, the form and substance of which documents shall be reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent acceptable to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower parties and Administrative Agent)their respective counsel. Without limiting the generality Upon satisfaction of the provisions foregoing conditions precedent and the funding of the last paragraph of Section 14.5initial Advance, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from execute and deliver to Borrower a release of any security interests created pursuant to any “Collateral Assignments” not continuing in effect hereunder or the “Account Pledge Agreement” (as such Lender prior to terms are defined in the proposed Closing Date specifying its objection theretoOriginal Credit Agreement) and terminations of any related UCC financing statements.
Appears in 1 contract
Initial Advance. Lenders will not be obligated The obligation of the Lender to fund make the initial Loans hereunderAdvance under this Agreement is subject to the satisfaction, and in the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each sole discretion of the items in clauses Lender, on or before the date thereof, of the following conditions precedent:
(a) through The Lender shall have received the following, all of which must be satisfactory in form and content to the Lender, in its sole discretion:
(k1) belowThe Loan Documents dated as of the date hereof duly executed by the Company;
(2) Certified copies of the Company's articles of incorporation and bylaws and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and a certification from the taxing authority of the state of incorporation stating that the Company is in good standing with said taxing authority;
(3) An original resolution of the board of directors of the Company, certified as of the date of this Agreement by its corporate secretary, authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, and all other instruments or documents to be delivered by the Company pursuant to this Agreement;
(4) A certificate (in the form of EXHIBIT "J") of the Company's corporate secretary as to the resolution of the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the other Loan Documents and the incumbency and authenticity of the signatures of the officers of the Company executing this Agreement and the other Loan Documents and each Advance Request and all other instruments or documents to be delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Lender);
(5) Financial statements of the Company (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of September 30, 1998 (the "Statement Date") and related statements of income, changes in stockholders' equity and cash flows for the period ended on the Statement Date and a balance sheet as of December 31, 1998 ("Interim Date") and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Lender;
(6) A favorable written opinion of counsel to the Company, dated as of the date of this Agreement, to be in substantially the form of EXHIBIT "M" hereto, and addressed to the Lender;
(7) A tax, lien and judgment search of the appropriate public records for the Company, including a search of Uniform Commercial Code financing statements, which search shall not have disclosed the existence of any prior Lien on the Collateral other than in favor of the Lender or as permitted hereunder;
(8) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.11 hereof, all in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c9) from any Restricted Company (other than Borrower) organized under the Laws Copies of the United States (Company's errors and omissions insurance policy or any state thereof) (i) that has not previously executed a Guarantymortgage impairment insurance policy and blanket bond coverage policy, a Guaranty executed all in form and content satisfactory to the Lender, showing compliance by the Company as of the date of this Agreement with the related provisions of Section 6.8 hereof and showing Lender as an additional loss payee on such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Companypolicies;
(d10) from any Restricted Company organized under Executed financing statements in recordable form covering the Laws of Collateral and ready for filing in all jurisdictions required by the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such PersonLender;
(e11) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Evidence that the Funding Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance established with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (E Loan Inc)
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers Issuer will not be obligated to issue the initial L/Cs C hereunder, unless Administrative Agent has received each of the items in clauses (a) through (kj) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (lk) and (ml) below have been satisfied (other than each item or condition, if any, listed on Schedule 7.16.1, which items or conditions are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) 6.1): an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with ; With respect to any Revolver Lender requesting a Revolver Note Notes pursuant to Section 3.1(a), a Revolver Noteeach of the Notes, payable to the order of such requesting Revolver each applicable Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting ; a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested Guaranty executed by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any each Restricted Company (other than Borrower) organized under the Laws , any Restricted Company that is a Qualifying Metro District, and any Subsidiary of the United States (or any state thereof) (i) Restricted Subsidiary that has not previously executed is a Guaranty, a Guaranty executed by such Restricted CompanyQualifying Metro District), or (ii) that for any Restricted Company which has previously executed a Guaranty, at Administrative Agent's election, a Confirmation of Guaranty executed consent or ratification by such Restricted Company;
Company of its existing Guaranty; a Pledge Agreement (dor at Administrative Agent's election, a ratification agreement) from any Restricted Company organized under executed by the Laws holder of the United States (or any state thereof) holding capital stock or other equity interests of any each Restricted Subsidiary (other than Company, pledging that capital stock in the North Star Subsidiaries or those interests, and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement (or at Administrative Agent's election, a ratification agreement) executed by such Person, pledging the portion Borrower in respect of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) its interest in SSI; an Officers’ ' Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) ; Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organizationorganization and each other state where it does business, each dated as of a recent date;
(g) after May 1, 2003; Legal opinions of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Senior Counsel, Corporate Governance & Securities General Counsel of VRI, and ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to Borrower and the other Restricted Companies, and such local counsel as Administrative Agent shall requestSubsidiaries, each in form and substance satisfactory to Administrative Agent;
; one of the foregoing opinions shall include opinions confirming that (hi) the Debt incurred under this Agreement and the related Loan Papers (A) has been incurred or entered into in compliance with the requirements of the Senior Subordinated Debt Indentures, and (B) constitutes "Senior Debt" under the terms of the Senior Subordinated Debt Indentures, and (ii) this Agreement constitutes the "Credit Agreement" as such term is defined in the Senior Subordinated Debt Indentures. Borrower's audited consolidated and supplemental condensed consolidating Financial Statements for 2002, and unaudited consolidated and supplemental condensed consolidating Financial Statements for fiscal quarters ending October 31, 2002 and January 31, 2003; a certificate signed by a Responsible Officer certifying that (i) all of that the representations conditions specified in Sections 6.2(c) and warranties of the Companies in the Loan Papers are true (d) have been satisfied, and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) that there has been no event or circumstance since July 31, 2017 2002 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) ; payment of all fees payable on or prior to the Closing Date to Administrative Agent, any other Agent-Related Party of Administrative AgentPerson, and or any Lender as provided for in Section 54; and
(m) and unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) Costs of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s 's reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided, provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Vail Resorts Inc)
Initial Advance. Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower▇▇▇▇▇▇▇▇;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), and (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower ▇▇▇▇▇▇▇▇ and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Eighth Amended and Restated Credit Agreement (Vail Resorts Inc)
Initial Advance. Lenders will not The obligation of the Bank to make the --------------- initial Advance is subject to the satisfaction, in the sole discretion of the Bank, on or before the date thereof of the following conditions precedent:
(a) The Bank shall have received the following, all of which must be obligated satisfactory in form and content to fund the initial Loans hereunderBank, and in its sole discretion:
(1) The Note duly executed by the L/C Issuers will not be obligated to issue Company;
(2) The Guaranty, in the initial L/Cs hereunderform attached hereto as Exhibit B, unless Administrative Agent has received duly executed --------- by each of the items Guarantors;
(3) Certified copies of the Company's articles of incorporation and bylaws, and certificates of good standing dated no less recently than three (3) months prior to the date of the initial Advance;
(4) A written opinion of counsel to the Company and each of the Guarantors (or of separate counsel at the option of the Company and the Guarantors) in clauses form and content satisfactory to the Bank, dated as of, or prior to, the date of the initial Advance, addressed to the Bank, substantially in the form attached hereto as Exhibit I. ---------
(a5) through An original resolution of the board of directors of the Company, certified as of the date of the initial Advance by its corporate secretary, authorizing the execution, delivery and performance of this Agreement and the Note, and all other instruments or documents to be delivered by the Company pursuant to this Agreement;
(k6) belowA certificate of the Company's corporate secretary as to the incumbency and authenticity of the signatures of the officers of the Company executing this Agreement and the Note and each Advance Request and all other instrument or document to be delivered pursuant hereto (the Bank being entitled to rely thereon until a new such certificate has been furnished to the Bank);
(7) Original independently audited financial statements of the Company (and its Subsidiaries, on a consolidated basis) for the most recent fiscal year end containing a balance sheet and related statements of income and retained earnings (the "Statement Date") and changes in financial position for the period entered on the Statement Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and acceptable to the Bank;
(8) Financial statements of each of the Guarantors, signed by them, dated no less recently than three (3) months prior to the date of the initial Advance;
(9) Copies of the certificates, documents or other written instruments which evidence the Company's eligibility described in Section 5.13 hereof, all in form and substance satisfactory to Administrative Agent the Bank;
(10) Copies of the Company's errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, all in form and content satisfactory to the Bank, showing compliance by the Company as of the date of the initial Advance with the related provisions of Section 6.8 hereof; and
(b) At the sole discretion of the Bank, the Bank may require any director, officer or shareholder of the Company, all Affiliates of the Company or of any Subsidiary of the Company, and each of the LendersGuarantors, and to whom or to any of whom the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to Company shall be delivered or satisfied after indebted as of the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart date of this Agreement, sufficient to execute a Subordination of Debt Agreement, in number for distribution to Administrative Agentthe form of Exhibit F hereto; and --------- the Bank shall have received an executed copy of said Subordination of Debt Agreement, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to certified by the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws corporate secretary of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution complete and delivery in full force and effect as of the Loan Papers or the proposed funding date of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing DateAdvance.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Preferred Credit Corp)
Initial Advance. Lenders will not be obligated The obligation of the Lender to fund make the initial Loans hereunderAdvance under this Agreement is subject to the satisfaction, and in the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each sole discretion of the items in clauses Lender, on or before the date thereof, of the following conditions precedent: (a) through (k) belowa0 The Lender shall have received the following, each all of which must be satisfactory in form and substance satisfactory content to Administrative Agent and each the Lender, in its sole discretion:
(1 The Loan Documents dated as of the Lenders, and date hereof duly executed by the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and BorrowerBorrowers;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order 2 Certified copies of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than each Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to 's articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
bylaws and certificates of good standing dated no less recently than ninety (f90) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Datedate of this Agreement and, with respect to each Borrower, a certification from the taxing authority of the state of incorporation stating that the applicable Borrower shall have provided to such Lenderis in good standing with said taxing authority:
(3 An original resolution of the board of directors of each Borrower, certified as of the date of this Agreement by its corporate secretary, authorizing the execution, delivery and performance of this Agreement and the other Loan Documents, and all other instruments or documents to be delivered by such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior Borrower pursuant to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrowerthis Agreement;
(l4 A certificate (in the form of EXHIBIT "J-1" OR "J-2", as the case may be) payment of all fees payable on or prior each Borrower's corporate secretary as to the Closing Date to Administrative Agentresolution of the board of directors of such Borrower authorizing the execution, any Related Party delivery and performance of Administrative Agent, this Agreement and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full the other Loan Documents and the incumbency and authenticity of all reasonable fees, expenses, the signatures of the officers of such Borrower executing this Agreement and disbursements of ▇▇▇▇▇▇ the other Loan Documents and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services each Advance Request and all reasonable expenses and disbursements of internal counsel other instruments or documents to be delivered pursuant hereto (collectively, “Attorney Costs”) of Administrative Agent the Lender being entitled to rely thereon until a new such certificate has been furnished to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative AgentLender). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.;
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Hanover Capital Mortgage Holdings Inc)
Initial Advance. Lenders will not be obligated The Lender shall have no obligation to fund make the initial Loans hereunderAdvance to the Borrower hereunder unless, and as of the L/C Issuers will not be obligated to issue date of the initial L/Cs hereunderAdvance, unless Administrative Agent has received each of the items in clauses (a) through (k) following conditions precedent shall be met to the reasonable satisfaction of Lender as provided below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1)::
(a) an executed counterpart All legal matters incident to the consummation of this Agreement, sufficient in number the transactions hereby contemplated shall be reasonably satisfactory to counsel for distribution the Lender and to Administrative Agent, each Lender, and Borrower;such local counsel as counsel for the Lender may retain.
(b) There shall have been delivered to the Lender, fully completed and duly executed (when applicable), the following, satisfactory to the Lender and its counsel:
(i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver This Agreement and the Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(cA) from any Restricted Company (other than Borrower) organized under the Laws a copy of the United States (certificate or any state thereof) (i) that has not previously executed a Guarantyarticles of incorporation, a Guaranty executed by such Restricted Companyincluding all amendments thereto, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any Borrower, certified as of a recent date by the Secretary of State of the state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or its organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, a certificate as applicable;
(f) Certificates to the good standing of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated the Borrower as of a recent date, from such Secretary of State; (B) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Effective Date and certifying (i) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the date hereof, and at all times since a date prior to the date of the resolutions described in clause (ii) below, (ii) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, and that such resolutions have not been modified, rescinded, or amended and are in full force and effect, (iii) that the certificate or articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (A) above, and (iv) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of the Borrower; (C) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (B) above; and (D) such other documents as the Lender may reasonably request;
(giii) Legal opinions a favorable written opinion from Borrower's general counsel, addressed to Lender, dated as of ▇▇▇▇▇ ▇▇▇▇▇▇▇even date herewith, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York addressing such legal matters as the Lender or its counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;reasonably require.
(hiv) a certificate signed by a Responsible Officer certifying satisfactory evidence that the Applicable Rating Level is Investment Grade or higher.
(iv) all of the representations and warranties of the Companies in the Loan Papers are true and correct in copies of all material respects (except to certificates, authorizations and consents, evidencing all Government Approvals, necessary for the extent qualified execution, delivery or performance by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, of this Agreement and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least 3 days prior to the Closing DateNote.
(kvi) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable feesthe Borrower's payment obligations to Lender under that certain Competitive Advance and Revolving Credit Facility Agreement dated October 27, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided, that such estimate shall not thereafter preclude a final settling of accounts 2000 between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been 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 Chase Manhattan Bank as Administrative Agent shall have received notice for certain Lenders (the "Chase Credit Facility") and the complete release of Lender from such Lender prior to its obligations under the proposed Closing Date specifying its objection theretoChase Credit Facility.
Appears in 1 contract
Initial Advance. Lenders will not be obligated Prior to fund the initial Loans Advance being made hereunder, the Borrower shall have delivered to the Lender the following:
(a) this Agreement and any other Loan Documents, including without limitation, the Note, the Guaranty and Security Agreement, and the L/C Issuers will not be obligated Account Control Agreements, each properly executed by all parties thereto, all in form and substance reasonably satisfactory to issue the initial L/Cs hereunder, unless Administrative Agent has received each Lender;
(b) written evidence of the items in clauses (a) through (k) belowreceipt of the Required Consents, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the conditions in clauses (l) and (m) below have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under confirmation satisfactory to the Laws of Lender that the United States (or any state thereof) (i) that Additional 1031 Liquidity has not previously executed a Guaranty, a Guaranty executed been received by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Companythe Guarantor;
(d) from any Restricted Company organized under all certificates, instruments and other documentation representing or evidencing the Laws Collateral, including copies of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in three most recent monthly account statements showing the North Star Subsidiaries and securities that comprise the Concessioner Subsidiaries)Collateral, (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each all in form and substance satisfactory to Administrative Agentthe Lender;
(e) if applicable, UCC-1 financing statements covering the Collateral, that have been duly recorded or filed in the manner and places required by law to establish, preserve, protect and perfect the interests and rights created or intended to be created by this Agreement and the Guaranty and Security Agreement;
(f) a copy of the certified resolutions of the board of directors (or other appropriate governing body) of each of the Borrower and the Guarantor as well as each other Person executing any Loan Documents, certified by the Secretary or another authorized officer of the Borrower, the Guarantor or such other Person, authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party;
(g) confirmation from the Borrower and FNF that the Merger Agreement has been executed and delivered by all parties thereto and that no notice of termination pursuant to Section 8.1 of the Merger Agreement has been sent by any of the parties thereto; and
(h) a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materialityadditional documents, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation certificates and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, assurances that the Act, in each case at least 3 days prior to the Closing DateLender or its counsel may reasonably require.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Initial Advance. Lenders will not be obligated At or prior to fund the time of the initial Loans hereunder, and Borrowing under the L/C Issuers will not be obligated to issue Revolving Credit or the issuance of the initial L/Cs hereunderLetter of Credit, unless Administrative Agent has received each of the items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Lenders, and the following conditions in clauses (l) and (m) below precedent shall also have been satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):satisfied:
(a) an The Administrative Agent shall have received the following for the account of the Lenders (each to be properly executed counterpart of and completed) and the same shall have been approved as to form and substance by the Lenders:
(i) this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and Notes;
(iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
copies (c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (executed or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, certified as applicable;
(f) Certificates of Existence and Good Standing (Account Statusmay be appropriate) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall request, each in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by a Responsible Officer certifying that (i) all Lender of the representations Articles of Incorporation and warranties By-laws of the Companies Company and each Guarantor and of all legal documents or proceedings taken in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) no Default or Potential Default exists under the Existing Agreement; (iii) no Default or Potential Default exists or would result from connection with the execution and delivery of the Loan Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, Documents to the knowledge of Borrower, threatened, in any court extent the Administrative Agent or before any arbitrator or Governmental Authority that could its counsel may reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulationsrequest, including, without limitation, resolutions of the ActBoard of Directors of each such corporation authorizing the execution, delivery and performance of the Loan Documents to be executed by it and certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document and request extensions of credit hereunder; and
(iv) the Administrative Agent shall have received evidence that the Company shall have received a ▇▇▇▇▇'▇ Rating of Baa3 or higher or an S&P Rating of BBB- or higher.
(b) The Administrative Agent shall have received good standing certificates for the Company and each Guarantor from the office of the Secretary of the State in each case at least 3 the state of its incorporation dated as of a date no later than 30 days prior to the Closing Date.
(k) at least 5 days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrowerdate hereof;
(lc) payment The Administrative Agent shall have received for the account of itself and the Lead Arrangers, Book Managers, and Syndication Agents and Documentation Agent the fees referred to in Sections 4.3 and 4.4 hereof;
(d) The Administrative Agent and the Lenders shall have received such information and agreements relating to the Company's purchase of the Acquired Assets as they may reasonably request, including, without limitation, copies of all fees indemnity agreements being entered into in favor of the Company and relating to the Seller's and/or British Nuclear Fuels PLC's indemnification of the Company and its Subsidiaries for environmental, pension and nuclear fuel related liabilities, and the same shall be in form and substance satisfactory to the Administrative Agent;
(e) The Administrative Agent have received pro forma financial projections for the next five years satisfactory in form and substance to the Administrative Agent;
(f) The Prior Credit Agreement shall have been terminated and all amounts payable thereunder shall be paid in full or otherwise provided for on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5date hereof; and
(mg) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (collectively, “Attorney Costs”) of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the conditions specified in this Section 7.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or been 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 for the account of the Lenders such Lender prior to other agreements, instruments, documents, certificates and opinions as the proposed Closing Date specifying its objection theretoAdministrative Agent or the Required Lenders make reasonably request.
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