Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent: (a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent: (i) counterparts of this Agreement executed by each of the parties hereto; (ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower; (iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date; (iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders; (v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person; (vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified; (vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests; (viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any; (ix) an Unencumbered Pool Certificate calculated as of the Effective Date; (x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006; (xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated; (xii) a Transfer Authorizer Designation Form effective as of the Agreement Date; (xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and (xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and (b) In the good faith judgment of the Agent: (i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect; (ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party; (iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and (iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Regency Centers Lp), Credit Agreement (Regency Centers Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower and the Florida Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms applicable provisions of Section 2.11.(a); 2.11., and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by Holdings, each Subsidiary that owns or leases a Collateral Property as of the Parent Effective Date and each Material Subsidiary (other than any other Person that would be required under Section 8.13. to become a party to the Guaranty Exempt Subsidiary) as of the Effective Date;
(iv) (A) an opinion or opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit H;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of BorrowingBorrowings, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of ConversionBorrowings, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) evidence of the payment of all Fees then due and payable under Section 3.8., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xi) a Borrowing Base Certificate calculated as of the Effective Date;
(xxii) a Compliance Certificate calculated on a as of June 30, 2006 (giving pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory effect to the Agent that financing contemplated by this Agreement and the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as use of the Agreement proceeds of the Loans to be funded on the Effective Date);
(xiii) evidence satisfactory to letters from the Agent that administrative agent under each Existing Credit Agreement providing information regarding the Fees, if any, then due payment in full of amounts outstanding under such Existing Credit Agreement and payable under Section 3.6., together with providing for the termination thereof and the release of all other fees, expenses and reimbursement amounts due and payable to the Agent and Liens securing any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; andobligations owing thereunder;
(xiv) all of the items required to be delivered under Sections 4.1. and 4.2. of the Existing Credit Agreement with respect to each Property identified on Schedule 4.1.;
(xv) such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning Holdings, the Borrower, the Parent, any other Loan Party or any Parties and the other Subsidiary Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and Holdings, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) When all of the conditions contained in the immediately preceding subsections (a) and (b) have been satisfied or waived in accordance with the terms hereof, the Agent shall promptly notify the Borrower and the Lenders thereof.
Appears in 2 contracts
Sources: Credit Agreement (Morgans Hotel Group Co.), Credit Agreement (Morgans Hotel Group Co.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); each applicable Lender that has requested that it receive Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent and any each other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateRequired Guarantor;
(iv) (Ai) the Pledge Agreement, executed by each of the Parent, General Partner, Borrower and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of ▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent Borrower and the other Loan Parties addressed to the Administrative Agent and the LendersLenders in form and substance acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062019;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xviii) copies of all Specified Derivatives Contracts in existence on the Agreement Date; and
(xivxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(bxx) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iixxi) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiixxii) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(xxiii) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(xxiv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivxxv) There each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 2 contracts
Sources: Credit Agreement (NetSTREIT Corp.), Credit Agreement (NetSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); each applicable Lender that has requested that it receive Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent and any each other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateRequired Guarantor;
(iv) (Ai) the Pledge Agreement, executed by each of the Parent, General Partner, Borrower and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of ▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent Borrower and the other Loan Parties addressed to the Administrative Agent and the LendersLenders in form and substance acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062019;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xviii) copies of all Specified Derivatives Contracts in existence on the Agreement Date; and
(xivxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivg) There each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 2 contracts
Sources: Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (but excluding any Designated Lender, if applicable, Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); 2.10.(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇K&L Gates, LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to matters reasonably requested by the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as within thirty (30) days of a recent date the Agreement Date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as within thirty (30) days of a recent date the Agreement Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued within thirty (30) days of the Agreement Date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Parent’s fiscal quarter ended June 30, 2012, giving pro forma effect to the repayment of indebtedness, liabilities and obligations required under Section 5.1.(a)(xii) and the occurrence of any Credit Event on the Agreement Date, or if such Compliance Certificate is not delivered on the Agreement Date, the occurrence of any Credit Event on such later date that the Compliance Certificate is delivered;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxii) evidence that all indebtedness, liabilities or obligations owing under the Existing Credit Agreement have been paid in full, all Liens securing such indebtedness, liabilities or obligations have been released, and all commitments under such Existing Credit Agreement have been terminated;
(xiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31June 30, 20052012, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to ;
(1iv) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to fulfill its obligations under comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Loan Documents to which it is a partyPatriot Act; and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents. The parties hereto acknowledge and agree that the conditions set forth in Section 5.1.(a) shall be required to be satisfied only once (other than with respect to those items required to be satisfied under Section 7.11.).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms applicable provisions of Section 2.11.(a); and the Swingline Note executed by the Borrower2.8;
(iii) the Facility Guaranty executed by the Parent and any each other Person that would be required under Section 8.13. the Borrower elects to become make a party to the Guaranty as of Guarantor on the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent Agent, the Lenders, in form and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAgent;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Person Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Continuation and Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as a certificate from a Responsible Officer of the Effective DateParent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, Fees then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel other Fees payable to the Agent, have been paidthe Titled Agents and the Lenders on or prior to the Effective Date;
(xi) a Compliance Certificate calculated as of September 30, 2011 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Periods therefore; and
(xivxiii) such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status concerning the Parent or its Subsidiaries since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary 2010 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the Closing Date will occur upon satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and or any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a)2.11.; and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Guarantors, addressed to the Agent and the Lenders and covering the matters set forth in Exhibit N-1, (B) an opinion of ▇▇▇▇▇▇▇ & Bird LLP, special Maryland counsel to the Agent Borrower, addressed to the Agent and the LendersLenders and covering the matters set forth in Exhibit N-2, and (C) an opinion of the Borrower’s general counsel addressed to the Agent and the Lenders and covering the matters set forth in Exhibit N-3;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) Loan Party of (Ai) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective DateMarch 31, 2005;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062005;
(xi) evidence satisfactory to a Closing Certificate substantially in form of Exhibit R, executed on behalf of the Agent that Borrower by an authorized officer of the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedBorrower;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xivxiii) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoans, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower2.9.;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Parent, the Borrower, the Parent and the other Guarantors Guarantors, addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth on Exhibit G;
(v) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower the Notice of Borrowing, Notices of Conversion and Notices of Continuation;
(vi) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(vii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Loan Party Guarantor, certified as of a recent date by the Secretary of State of the state State of formation in the case of such Personthe Parent, PREIT and PREIT-▇▇▇▇▇ and certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) in the case of the Parent, PREIT, PREIT-▇▇▇▇▇ and each Guarantor;
(viviii) a certificate Certificate of good standing (Good Standing or certificate of similar meaning) meaning with respect to the Parent, the Borrower and each Loan Party Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(viiix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Guarantor with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the Parent, the Borrower and each Guarantor of the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(Bxi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a the Notice of Borrowing from the Borrower;
(xiii) the Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixiv) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the AgentLenders for which payment has been demanded, have been paid; and
(xivxv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and.
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any the Borrower and the other Loan Party or any other Subsidiary Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in have a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with under or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the Loan Parties, including, without limitation, each Guarantor, each in its respective capacity as a Guarantor, and all of the other parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has notified the Agent that it has elected not to receive a Revolving Note) and complying with the terms applicable provisions of Section 2.11.(a2.10(a); . and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty Parent, each Material Subsidiary existing as of the Effective Date, each Subsidiary Obligor existing as of the Effective Date and each Other Subsidiary Guarantor;
(iv) (A) an a favorable opinion or opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, legal counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent Agent, the Lenders, the Swingline Lender and the Lenders Issuing Bank, addressing the enforceability of the Loan Documents and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to such matters as the Agent addressed to the Agent and the Lendersshall reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and the Parent, and with respect to each other Loan Party Party, as requested by the Agent, certified as of a recent date by the Secretary of State of the state State of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Borrower, the Parent, and to the extent requested by the Agent, each other Loan Party Party, issued as of a recent date by the Secretary of State of the state of formation of each such Person and Loan Party and, to the extent requested by the Agent, certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver deliver, on behalf of the Borrower Borrower, Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified (or bringdown certifications with respect to Loan Parties other than the Borrower or the Parent, to the extent permitted by the Agent) by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, if anypartnership, member or other necessary action taken by each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis basis, giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, for the BorrowerParent’s fiscal quarter ending December 31September 30, 20062013;
(x) a closing certificate addressed to the Agent including certifications, as of the Agreement Date, as to the matters set forth in clauses (i) through (iv) of Section 5.1(b) and as to such other matters as the Agent may reasonably request;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminateda Notice of Borrowing;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Datefully executed Fee Letter;
(xiii) evidence satisfactory that the Borrower has paid to the Agent Agent, for the accounts of the Lenders or for its own account, as applicable, all of the fees and expenses that the Fees, if any, then are due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any 3.5 as of the Lenders, including without limitation, Agreement Date or under the fees and expenses of counsel to the Agent, have been paid; andFee Letter.
(xiv) to the extent requested by the Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xv) UCC, and to the extent requested by the Agent, lien, litigation, judgment and bankruptcy, search results from the appropriate jurisdictions for each Loan Party;
(xvi) such other documents information, documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There there shall not have occurred any material adverse change in the business, assets, operations, condition (financial or become known to otherwise) or prospects of the Agent Parent, the Borrower or any of the Lenders any event, condition, situation or status other Loan Party since December 31, 2005, concerning 2012 or in the Borrower, facts and information regarding the Parent, any the Borrower and the other Loan Party or any other Subsidiary that has had or could reasonably be expected Parties as most recently provided to result in a Material Adverse Effectthe Agent and the Lenders;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The no event of default or unmatured event of default shall have occurred and be continuing under any of the Parent’s, the Borrower’s or any other Loan Party’s financial obligations in effect on the Agreement Date, both before and after giving effect to the financing contemplated by this Agreement;
(iv) the Parent, the Borrower and the each other Loan Parties Party shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party;
(v) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Agent, each Lender and the Issuing Bank in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(ivvi) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents. For purposes of determining compliance with the conditions specified in this Section 5.1(a), each Lender that has executed and delivered this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to, approved by, or acceptable or satisfactory to, such Lender unless the Agent shall have received written notice from such Lender prior to the Agreement Date specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (First Potomac Realty Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Notes and Bid Rate Credit Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of of, Section 2.11.(a2.11(a); , and the Swingline Note Term Loan Notes executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1;
(iv) (A) an opinion of ▇H▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party of the Borrower and the Parent Guarantor issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person a Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006[intentionally omitted];
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated[intentionally omitted];
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory that the Fees (including, to the Agent that extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest under the Existing Credit Agreement accrued through the Effective Date), if any, then due and payable under Section 3.6.3.5, together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivi) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower;
(xv) [intentionally omitted];
(xvi) a copy of a duly executed amendment to the Capital One Term Loan Agreement, consistent with the modifications contemplated hereby;
(xvii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes Notes, and if requested by any Lender, Bid Rate Notes for such requesting Lenders, executed by the Borrower, payable to all Lenders and any each Lender (or Designated Lender, if applicable, ) and complying with the terms applicable provisions of Section 2.11.(a); 2.11., and the Swingline Note executed by the Borrower;
(iii) the Facility Guaranty executed by the Parent and any each other Person that would be required under Section 8.13. the Borrower elects to become make a party to the Guaranty as of Guarantor on the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent and Agent, the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLPthe Swingline Lender, counsel to addressing the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit M;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Person Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline BorrowingBorrowings, requests for Letters of CreditBid Rate Quote Requests, Notices of ConversionBid Rate Quote Acceptances, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as a certificate from a Responsible Officer of the Effective DateParent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, Fees then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xi) a Compliance Certificate calculated as of June 30, 2007 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) evidence that, simultaneously with the execution of this Agreement, the Existing Credit Facilities have been paidpaid in full, that all commitments thereunder have been irrevocably terminated and that any liens securing obligations thereunder have been released; and
(xivxiii) such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the BorrowerParent or its Subsidiaries since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, any other Loan Party or any other Subsidiary Parent and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The effectiveness of this Agreement, and the obligation of Lender to make the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Advance hereunder is subject to the satisfaction or waiver of the following conditions precedent:; provided, however, disbursement of the first Advance shall constitute Lender’s acknowledgement that all of the following conditions have been satisfied or waived.
(a) The Agent Lender shall have received each of the following, in form and substance satisfactory to the AgentLender:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the a Repayment Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateGuarantor;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lendersa Completion Guaranty executed by Guarantor;
(v) a Hazardous Materials Indemnity Agreement executed by Borrower and Guarantor;
(vi) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party Borrower and Guarantor certified as of a recent date by the Secretary of State of the state State of formation of such Person;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party of Borrower and Guarantor issued as of a recent date by the Secretary of State of the state State of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) or other comparable document of each Loan Party Borrower and Guarantor with respect to each of the officers officers, members, managers or partners of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsAuthorized Signatories;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of Borrower and Guarantor of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ixx) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(xxi) a Compliance Certificate Borrowing Base Report calculated on a pro forma basis for as of the Borrower’s fiscal quarter ending December 31Effective Date, 2006;
(xi) evidence satisfactory to based upon the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedinitial Borrowing Base Properties;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Datewith respect to each Project identified on Schedule 4.1(a), all requirements for being an Eligible Property have been satisfied;
(xiii) evidence satisfactory to the Agent Lender that the Fees, if any, then due and payable under Section 3.6.3.2, together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the LendersLender, including without limitation, the fees and expenses of counsel to the AgentLender, have been paidpaid or will be paid with the first Advance;
(xiv) evidence satisfactory to Lender that Borrower has obtained Property Insurance for each Project in accordance with Section 7.6(b); and
(xivxv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and.
(b) In the good faith judgment of the AgentLender:
(i) There shall not have occurred or become known to the Agent or any of the Lenders Lender any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary delivered to Lender prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;Documents; and
(iii) The Borrower and the other Loan Parties Guarantor shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them Loan Party or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); each applicable Lender that has requested that it receive Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent and any each other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateRequired Guarantor;
(iv) (Ai) an opinion the Pledge Agreement, executed by each of ▇▇▇▇▇ & the Parent, General Partner, B▇▇▇▇▇▇▇, counsel ▇ and each Subsidiary Guarantor party thereto from time to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders time and (Bii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of W▇▇▇▇▇▇ & Bird S▇▇▇▇▇ LLP, counsel to the Agent Borrower and the other Loan Parties addressed to the Administrative Agent and the LendersLenders in form and substance acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062019;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xviii) copies of all Specified Derivatives Contracts in existence on the Agreement Date; and
(xivxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivg) There each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes A Note executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender that has requested a Note, and complying with the terms of of, Section 2.11.(a2.11(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1;
(iv) (A) an opinion of ▇H▇▇▇▇ & ▇▇▇▇▇▇▇Lovells LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the “Existing Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the “Existing Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending December 31, 2006Unencumbered Pool under this Agreement;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminateda Compliance Certificate calculated as of September 30, 2012;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance or continuation of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the BorrowerBorrowers, payable to all Lenders and any Designated each Lender (if requested by such Lender, if applicable, ) and complying with the terms applicable provisions of Section 2.11.(a); and the Swingline Note executed by the Borrower2.10;
(iii) the The Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty each Guarantor existing as of the Effective Date;
(iv) The Pledge Agreement executed by the Parties thereto;
(Av) an An opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vvi) the certificate or The articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrowers and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Swingline BorrowingContinuation, requests for Notices of Conversion and to request the issuance of Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ixx) an Unencumbered Pool The Fees then due and payable under Section 3.6, and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xi) A Compliance Certificate calculated as of December 31, 2010 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xii) A letter from each applicable agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the treatment thereof;
(xiii) A Borrowing Base Certificate dated as of the Effective Date;
(xxiv) a Compliance Certificate calculated Such due diligence (including lien searches and/or title reports) with respect to the Borrowing Base Assets Pool as the Agent on a pro forma basis for behalf of the Borrower’s fiscal quarter ending December 31, 2006Lenders may reasonably request;
(xixv) evidence satisfactory all documentation, recordings, filings and other actions in the judgment of the Agent required to collaterally assign the Collateral to the Agent that for the Existing Credit Agreement has been paid in full benefit of the Lenders and that all commitments thereunder to perfect the Agent’s first priority Lien therein for the benefit the Lenders shall have been terminatedcompleted;
(xiixvi) a Transfer Authorizer Designation Form effective as the Borrower and each other Loan Party shall have provided all information requested by the Agent and each Lender in order to comply with the USA Patriot Act (Title III of the Agreement DatePub. L. 107-56 (signed into law October 26, 2001));
(xiiixvii) evidence satisfactory to the Agent that the FeesSuch other documents, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Trust and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower Trust and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which any Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the any Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are both subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any each Lender (or Designated Lender, if applicable) executed by the Borrower, payable to each Lender and complying with the terms applicable provisions of Section 2.11.(a); 2.12., and the Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by the Parent and any each other Person that would be required under Section 8.13. to become a party to the Guaranty Guarantor existing as of the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Evidence that all amounts outstanding under the Borrower, Existing Credit Agreement have been paid in full and that the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the LendersExisting Credit Agreement has terminated;
(v) An opinion of counsel to the certificate or Loan Parties, addressed to the Agent and, the Lenders, addressing the matters set forth in Exhibit H;
(vi) The articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of such PersonLoan Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline BorrowingBorrowings, requests for Letters of CreditBid Rate Quote Requests, Notices of ConversionBid Rate Quote Acceptances, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, The Fees then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel other Fees payable to the Agent, have been paidthe Titled Agents and the Lenders on or prior to the Effective Date;
(xi) A Compliance Certificate calculated as of September 30, 2006 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date); and
(xivxii) such Such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any the Borrower and the other Loan Party or any other Subsidiary Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (U-Store-It Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;
Parent; (iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to in the Agent addressed to the Agent and the Lenders;
form set forth in Exhibit J; (v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
Loan Party; (vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualified;
qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices the Notice of Swingline Term Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote Requests;
Continuation; (viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
; (ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a as of March 31, 2021 giving pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory effect to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
transactions contemplated by this Agreement; - 69 - LEGAL02/40527467v10 (xiix) a Transfer Authorizer Designation Form completed Disbursement Instruction Agreement effective as of the Agreement Date;
; (xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxii) evidence that all accrued and unpaid interest and fees owing by the Loan Parties under the Existing Credit Agreement have been paid in full and that the principle amount of the Existing Term Loans and all interest, fees and other amounts owed with respect to the Existing Term Loans have been paid in full and that the agreement evidencing the Existing Term Loans has been terminated; and (xiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There since December 31, 2020, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation event or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary condition that has had or could reasonably be expected to result in have a Material Adverse Effect;
; (iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
; (iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1x) have a Material Adverse Effect, or (2y) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
and (ive) There the Administrative Agent and the Lenders shall not have occurred or exist any received, at least five (5) Business Days prior to the Agreement Date, all documentation and other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated information requested by the Loan Documents.Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act and any applicable “know your customer” rules and regulations; and (f) the Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it (or a certification that such Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations), in each case at least five (5) Business Days prior to the Closing Date
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the BorrowerBorrowers, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a2.12(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would Guarantor initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerBorrowers and such other Loan Parties as Administrative Agent may request, the Parent and the other Guarantors addressed to the Administrative Agent and the Lenders in a form and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel substance satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf of the Borrower Borrowers Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Borrowing Base Certificate calculated as of the Effective Agreement Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s Borrowers’ fiscal quarter ending December March 31, 20062012;
(xi) evidence satisfactory with respect to each Property identified on Schedule 4.1, each of the Agent that the Existing Credit Agreement has been paid items referred to in full and that all commitments thereunder have been terminatedSection 6.3 required to be delivered in connection with any Borrowing Base Property;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory UCC, tax, judgment and lien search reports with respect to the Agent Borrowers (or a Subsidiary if any Borrowing Base Property is owned by a Subsidiary) and each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property other than Permitted Liens;
(xiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease (if any) to be used for each Borrowing Base Property from the Agreement Date until the Maturity Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) the Fee Letter;
(xvii) evidence that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xviii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Administrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Lenders, the Issuing Bank, and the Specified Derivatives Providers is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Borrowers, any Loan Party or any other Subsidiary actually maintains with respect to any Property and improvements on such Property; and
(xivxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrowers and their Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or or, to Borrower’s knowledge, threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrowers or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower the Borrowers and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(iv) There the Borrowers and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(vi) the Parent, Borrowers and their Subsidiaries and Affiliates shall have permanently reduced any and all commitments available under the ▇▇▇▇▇ Fargo Repurchase Line of Credit to an aggregate amount not to exceed $12,000,000.
Appears in 1 contract
Sources: Credit Agreement (CapLease, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and each applicable Lender (excluding any Designated Lender, if applicable, Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); 2.12
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerParent, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit L;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party (or certification from the Secretary of the applicable Loan Party that there have been no changes thereto since the Original Closing Date);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedLoan Party;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Maximum Loan Availability Certificate calculated as of the Effective Date;
(x) Appraisals of all Secured Pool Properties, together with all other due diligence reasonably requested by the Administrative Agent with respect to each Secured Pool Property, including, to the extent requested by the Administrative Agent, the items set forth on Schedule 6.1 hereto;
(xi) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending December March 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated2015;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory that all accrued and unpaid interest, fees and expenses then due and owing by the Loan Parties under the Existing Credit Agreement as of the Effective Date shall have been paid in full;
(xiv) copies of all Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease to be used for each Property from the Agent Effective Date until the Revolving Termination Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) evidence that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Arrangers and any of the LendersLenders pursuant to the Fee Letters or pursuant to the terms of this Agreement, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xvii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Administrative Agent of any cancellation for nonpayment of premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Lenders, the Issuing Banks, and the Specified Derivatives Providers is named as a mortgagee lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Borrower, any Loan Party or any other Subsidiary actually maintains with respect to any Property and improvements on such Property; and
(xivxviii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Parent and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to ;
(1e) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to fulfill its obligations under comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Loan Documents to which it is a partyPatriot Act; and
(ivf) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Tier Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.(a); 2.10.(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇▇ & Bird Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering the matters set forth in Exhibit J;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31ended June 30, 20062010;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse EffectFee Letter;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent::
(i) counterparts of this Agreement executed by each of the parties hereto;;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.11.(a); ) and the a replacement Swingline Note executed by the Borrower;;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;thereto;
(iv) (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersmay reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualified;qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote Requests;Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter previous four calendar quarters ending December 31on June 30, 2006;2018;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ive) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.;
(f) the Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable, but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); 2.13(a) and the Swingline Note executed by the Borrower;
(iiic) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (Ad) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerBorrower and such other Loan Parties as the Administrative Agent may request, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Administrative Agent and the Lenders;
(ve) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vif) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party within thirty (30) days of the date hereof, and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viig) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiih) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(xi) a Compliance Certificate and an Unencumbered Asset Value Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062014;
(xij) evidence satisfactory UCC, tax, judgment and lien search reports with respect to the Agent Borrower in all necessary or appropriate jurisdictions indicating that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedthere are no liens of record other than Permitted Liens;
(xiik) copies of all Specified Derivatives Contracts in existence on the Agreement Date and a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiil) evidence satisfactory a complete listing of all Subsidiaries which are Non-Guarantor Entities;
(m) Borrower shall have paid to Administrative Agent, for the benefit of Lenders, all interest and other fees due under the Existing Credit Agreement, prorated to the Agent that Effective Date;
(n) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the Fees, if any, then due and payable under Section 3.6., together with outstanding balances referenced on Schedule 1.6 attached hereto;
(o) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivp) such other documents documents, agreements, and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the reasonable satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 13.13(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page that such party has signed a counterpart of this Agreement or such Loan Document);
(ii) Revolving to the extent requested by the Lenders, Notes and Bid Rate Notes executed made by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a2.10(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) an opinion of each of (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent and the Lenders Loan Parties and (B) an opinion of ▇▇▇▇▇▇▇ & Bird ▇▇▇▇▇ LLP, Maryland counsel to the Agent Spirit REIT, addressed to the Administrative Agent and the LendersLenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state of formation of each such Person and certificates Loan Party issued as of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifieda recent date;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062022;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form completed Borrower Administrative Questionnaire effective as of the Agreement Date;
(xi) [reserved];
(xii) copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxv) such UCC, tax, judgment and lien search reports with respect to each Loan Party in its jurisdiction of organization indicating that there are no liens of record other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; andthan Permitted Liens.
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known any material adverse change in the Borrower’s financial condition since the date of the most recent quarterly financial statement filed with the SEC on Form 10-K prior to the Agent or any date of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effectthis Agreement;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ivi) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11.(a) at least three (3) days prior to the date hereof, Revolving Notes and Bid Rate Credit Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of of, Section 2.11.(a); ) and the Swingline a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11.(a);
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1.;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Original Credit Agreement or the Original Term Loan Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the Original Credit Agreement or the Original Term Loan Agreement has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5.;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending December 31, 2006Unencumbered Pool under this Agreement;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminateda Compliance Certificate calculated as of December 31, 2015;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory that the Fees (including, to the Agent that extent then due, (A) the “Fees” (under and as defined in the Original Credit Agreement) and interest under the Original Credit Agreement accrued through the Effective Date and (B) the “Fees” (under and as defined in the Original Term Loan Agreement) and interest under the Original Term Loan Agreement accrued through the Effective Date), if any, then due and payable under Section 3.63.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Creditmake their respective Loans, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate the Notes executed by the Borrower, payable to all Lenders and (other than any Designated Lender, if applicable, and complying with the terms of Section 2.11.(aLender that has requested that it not receive a Note); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerBorrower and Realty Income, the Parent and the other Guarantors addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H-1, (B) an opinion of ▇▇▇▇▇▇▇ & Bird ▇▇▇▇▇ LLP, special Maryland counsel to the Agent Realty Income, addressed to the Administrative Agent and the LendersLenders and covering the matters set forth in Exhibit H-2, and (C) an opinion of Realty Income’s general counsel addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H-3;
(v) copies of the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party Party, reflecting such Loan Party’s name and certified as of a recent date by the Secretary of State of the state of formation of such PersonPerson (or in the case of any Loan Party other than the Borrower or Realty Income, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, and Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) Loan Party of (Ai) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Closing Certificate calculated as substantially in form of Exhibit I, executed on behalf of the Effective DateBorrower by an authorized officer of the Borrower;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Administrative Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) the “Merger” has defined in that certain Agreement and Plan of Merger dated as of September 6, 2012 by and among Realty Income, Tau Acquisition LLC and American Realty Capital Trust, Inc. has been consummated; and
(xivxiii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party Realty Income or the Borrower to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties Realty Income shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party the Borrower or Realty Income is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party Realty Income to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Note, and complying with the terms of Section 2.11.(a); 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit O;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 20062011;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) the Fee Letter;
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Parent and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower the Parent and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain restrain, enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.(a2.8.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, legal counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersshall reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party (provided, that to the extent such formation document was delivered in connection with the Existing Term Loan Agreement, such Loan Party (excluding the Parent and the Borrower) shall be permitted to provide a certificate of no change with respect to such formation document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (provided, that to the extent such organizational document was delivered in connection with the Existing Term Loan Agreement, such Loan Party (excluding the Parent and the Borrower) shall be permitted to provide a certificate of no change with respect to such organizational document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending December March 31, 20062013;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xii) if required by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiii) evidence that the Existing Credit Agreement has been amended to conform to certain sections of this Agreement, in form and substance satisfactory to the Borrower, the Administrative Agent, and ▇▇▇▇▇ Fargo, as administrative agent under the Existing Credit Agreement;
(xiv) evidence that the Existing Term Loan Agreement has been amended to conform to certain sections of this Agreement, in form and substance satisfactory to the Borrower, the Administrative Agent, and KeyBank National Association, as administrative agent under the Existing Term Loan Agreement;
(xv) payoff letters from the lender or administrative agent, as applicable, under each of the Existing Mortgage Loans providing appropriate information regarding the payment in full of all Indebtedness under each Existing Mortgage Loan;
(xvi) the Notice of Borrowing pursuant to Section 2.1.(b);
(xvii) such other documents and instruments as the Agent, or any Lender through the Agent, Administrative Agent may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Parent, the Borrower and the other Loan Parties their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party;
(iv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a); 2.10.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit K;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s most recently ended fiscal quarter ending December 31, 2006quarter;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the AgentAdministrative Agent and the Lenders:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any the Borrower and the other Loan Party or any other Subsidiary Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Parent, the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Parent, the Borrower and each other Loan Party has provided all such information as a Lender may request in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Excel Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Security Instrument shall be a valid lien upon the Property, prior and superior to all other liens and encumbrances thereon except those approved by Administrative Agent in writing;
(b) No Default or Potential Default exists under the Original Loan Documents; and
(c) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts all Loan Documents, other documents, instruments, policies, and forms of evidence or other materials requested by Administrative Agent under the terms of this Agreement executed by each or any of the parties heretoother Loan Documents;
(ii) Revolving Notes and Bid Rate Notes executed by a new ALTA survey of the BorrowerProperty, payable certified to all Administrative Agent, for the benefit of Lenders and any Designated Lenderthe title insurer, if applicableshowing the boundaries of the Property by courses and distances, together with a corresponding metes and bounds description, the actual or proposed location of all improvements, encroachments and restrictions, the location and width of all easements, utility lines, rights-of-way and building set-back lines, and complying with notes referencing book and page numbers for the terms of Section 2.11.(a); and instruments granting the Swingline Note executed by the Borrowersame;
(iii) a new Appraisal of the Guaranty executed by Property certifying an “as-stabilized” Appraised Value sufficient so that the Parent and any other Person that would be required under Section 8.13. to become ratio (expressed as a party percentage) of the amount of the Loan to the Guaranty as “as-stabilized” Appraised Value of the Effective DateProperty does not exceed 60%;
(iv) (A) an a legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the LendersLoan Parties;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requestsdisbursement from the FF&E Reserve Account;
(viii) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated A certificate of Guarantor attaching a complete and accurate depiction of the direct and indirect owners of Borrower and Operating Lessee;
(x) a Disbursement Instruction Agreement effective as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedassets of each such Loan Party other than Permitted Liens;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.2.4, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiii) insurance certificates, or other evidence, providing that the insurance coverage required under Article V (including, without limitation, both property and liability insurance for the Property) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to Administrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (30) days prior written notice to Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that Administrative Agent, for its benefit and the benefit of Lenders is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that Borrower or any Loan Party actually maintains with respect to the Property and improvements thereon; and
(xiv) such other documents and instruments as the Security Documents;
(xv) a Management Agreement Subordination with respect to the Management Agreement;
(xvi) copies of all Material Contracts (to the extent not theretofore delivered) and, if requested by Administrative Agent, collateral assignments executed by Borrower or any Lender through Operating Lessee (as applicable) in favor of Administrative Agent for its benefit and the benefit of Lenders, of the Material Contracts relating to the use, occupancy, operation, maintenance, enjoyment or ownership of the Property;
(xvii) an ALTA 2006 Form Loan Policy of Title Insurance for the Property in the aggregate amount of the original principal amount of the Loan in favor of Administrative Agent for its benefit and the benefit of Lenders, including endorsements with respect to such items of coverage as Administrative Agent may request (including, without limitation, aggregation endorsements for each policy) and which endorsements are available and customary in the jurisdiction where the Property is located, issued by First American Title Insurance Company, showing Borrower’s fee simple title to the Property, and Operating Lessee’s leasehold interest in the Property, and other Collateral described in the Security Instrument as vested in Borrower and Operating Lessee, respectively, and insuring that the Lien granted by the Security Instrument is a valid Lien against the Property and the Collateral described therein, subject only to liens, restrictions, encumbrances, easements and reservations as are acceptable to Administrative Agent (the “Title Policy”);
(xviii) receipt and approval of the current Capital Budget, Operating Budget and Marketing Plan; (xix) receipt and approval of a reliance letter from The Planning & Zoning Resource Corporation with respect to its March 9, 2007 zoning report with respect to the Property, and a copy of such zoning report;
(xx) receipt and approval by Administrative Agent of a property conditions report with respect to the Property (the “Property Conditions Report”) and funds from Borrower, to be held in escrow with Administrative Agent, may reasonably requestin an amount equal to one hundred twenty percent (120%) of the cost estimated in the Property Condition Report to complete any “immediate repairs” (or similar) as identified therein (to be disbursed to Borrower by Administrative Agent upon Administrative Agent’s confirmation of completion of such “immediate repairs”);
(xxi) receipt and approval by Administrative Agent of a phase I (and phase II if necessary) environmental assessment report with respect to the Property; and
(bxxii) In such other instruments, documents, agreements, financing statements, certificates, opinions and other Security Documents as Administrative Agent may reasonably request. Administrative Agent acknowledges it has received and approved the good faith judgment of deliverables in subsections (xix) - (xxi) above in connection with the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsOriginal Loan.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); each applicable Lender that has requested that it receive Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent and any each other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateRequired Guarantor;
(iv) (Ai) the Pledge Agreement, executed by each of the Parent, General Partner, ▇▇▇▇▇▇▇▇ and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent Borrower and the other Loan Parties addressed to the Administrative Agent and the LendersLenders in form and substance acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a LEGAL 4867-4266-3982v.3 corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2 have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062019;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xviii) copies of all Specified Derivatives Contracts in existence on the Agreement Date; and
(xivxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivg) There each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Credit Issuer to issue the initial Letter of Credit pursuant to the terms and conditions of this Agreement is subject to the satisfaction or waiver condition precedent that the Letter of the following conditions precedent:
(a) The Agent Credit Issuer shall have received each on or before the day of issuance of the initial Letter of Credit the following, each dated on or before such day, in form and substance reasonably satisfactory to the Agent:Letter of Credit Issuer (the first day when all such conditions have been satisfied or waived is hereinafter referred to as the "Effective Date"):
(a) Duly executed signature pages to this Agreement, any Collateral Provider Guaranty, any Subsidiary Guaranty and any Account Control Agreement (including by facsimile or other electronic means) in a sufficient number of signed counterparts as requested by the Letter of Credit Issuer.
(b) A certificate of the Secretary, Assistant Secretary, or any other officer, director, or manager of each Credit Party and Collateral Provider certifying (i) counterparts of this Agreement executed by each the resolutions of the parties hereto;
board of directors or managers of such Credit Party or Collateral Provider authorizing the execution of each Credit Document to which such Credit Party or Collateral Provider is a party, (ii) Revolving Notes the charter and Bid Rate Notes executed by the Borrowerbylaws or other applicable organizational documents of such Credit Party or Collateral Provider, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) certificates of existence, good standing and qualification, or an equivalent thereto, from appropriate government officials with respect to such Credit Party or Collateral Provider, provided that such government officials of the Guaranty applicable jurisdiction issue such certificates or an equivalent thereto, (iv) all other documents evidencing any necessary company action and governmental, shareholder and third-party consents, approvals and filings, if any, with respect to each such Credit Document and the transactions thereunder, and (v) the names and true signatures of the officers (or agents) of such Credit Party or Collateral Provider authorized to sign each Credit Document to be executed by it.
(c) A certificate of a Responsible Officer of Cameron certifying (i) that the Parent representations and any other Person that would be required under Section 8.13. to become a party to the Guaranty warranties contained in each Credit Document are true and correct in all material respects as of the Effective Date;
Date (other than those representations and warranties that are subject to a materiality qualifier, which shall be true and correct in all respects), (ii) as to the satisfaction of all conditions set forth in this Section 3.01, (iii) no Event of Default or Default exists on the Effective Date or would result therefrom, (iv) the absence of any Material Adverse Effect since the date of Cameron's last audited financial statements, and (Av) an the annual Consolidated audited financial statements of Cameron and its Subsidiaries for the fiscal year ended December 31, 2010 and the quarterly Consolidated unaudited Consolidated financial statements of Cameron and its Subsidiaries for the fiscal quarters ended March 31, 2011, June 30, 2011, and September 30, 2011, in each case delivered to the Letter of Credit Issuer prior to the Effective Date, are true and correct copies of such financial statements, fairly present the Consolidated financial condition of Cameron as of such dates, and were, to the best of such officer's knowledge, prepared in conformity with GAAP.
(d) Certificates of existence, good standing and qualification from appropriate state officials with respect to each Credit Party and Collateral Provider and foreign equivalents for each Non-U.S. Credit Party and each Collateral Provider that is not incorporated under the laws of the United States of America or a state thereof (each, a "Non-U.S. Collateral Provider").
(e) A legal opinion of P▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Credit Parties, including without limitation certain specific no-conflicts opinions to the JPMorgan Credit Agreement and Cameron's other debt documents, in form and substance reasonably satisfactory to the Letter of Credit Issuer.
(f) A legal opinion of W▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., in-house counsel to the BorrowerCredit Parties, the Parent in form and the other Guarantors addressed substance reasonably satisfactory to the Agent and the Lenders and Letter of Credit Issuer.
(Bg) an A legal opinion of ▇▇▇▇▇▇ & Bird LLP, external New York counsel to the Agent addressed Credit Parties in form and substance reasonably acceptable to the Agent and the Lenders;Letter of Credit Issuer.
(vh) the certificate or articles Evidence of incorporation, articles appointment by each Non-U.S. Credit Party of organization, certificate CT Corporation System as its domestic process agent in accordance with Section 8.17.
(i) The audited Consolidated financial statements of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified Cameron and its Subsidiaries dated as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;2010 and unaudited Consolidated financial statements of Cameron and its Subsidiaries dated as of March 31, 2011, June 30, 2011, and September 30, 2011.
(xij) evidence satisfactory All documents required for the establishment of the Reimbursement Account, executed by the Applicants.
(k) There shall exist no pending or threatened litigation, request, directive, injunction, stay, order, or proceeding since December 31, 2010 that could reasonably be expected to have a Material Adverse Effect.
(l) All documentation and other information that the Credit Parties are required by bank regulatory authorities to deliver to the Agent Letter of Credit Issuer under applicable "know your customer" and anti-money laundering rules and regulations, including Title III of the Patriot Act, that the Existing Credit Agreement has been paid in full identified by the Letter of Credit Issuer and that all commitments thereunder have been terminated;notified to the Credit Parties.
(xiim) a Transfer Authorizer Designation Form effective as Evidence of payment by the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with Credit Parties of all other accrued fees, expenses and reimbursement amounts due and payable disbursements required to be paid by the Agent and any of Credit Parties on the Lendersdate hereof, including without limitation, the fees and expenses of counsel to the Agent, have been paid; andLetter of Credit Issuer.
(xivn) such Completion of Cameron's installation of the Bolero System and the respective trade modules or completion of Cameron’s installation of CitiDirect.
(o) Such other documents documents, governmental certificates, conditions, agreements and instruments lien searches as the Agent, or any Lender through the Agent, Letter of Credit Issuer may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Continuing Agreement for Letters of Credit (Cameron International Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.(a); 2.10.(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇▇ & Bird Worcester LLP, and an opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062011;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent Loan Parties under the Existing Credit Agreement shall have been paid in full;
(xii) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders any Lender to effect or permit the occurrence of the first Credit Event hereundermake any Loan, whether as the making of a Loan or the issuance of a Letter of CreditSwingline Lender to make any Swingline Loan to Borrower, in each case is subject to the satisfaction or waiver of condition precedent that the following conditions precedent:
(a) The Agent shall have received each of the following, each of which shall be satisfactory in form and substance satisfactory to the Agent:
(i) counterparts a counterpart of this Agreement executed by the Borrower and each of the parties heretoLenders;
(ii) the Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all each of the Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); 2.8., and the Swingline Note executed by the Borrower, payable to the Swingline Lender;
(iii) the Guaranty executed by each Loan Party other than the Parent Borrower;
(iv) the Pledge Agreement executed by each of the Borrower and each other Loan Party owning any equity interest in any other Person that would be required under Section 8.13. to become a party Loan Party, substantially in the form of Exhibit L;
(v) the certificates issued in the name of the applicable Loan Party evidencing the stock and other securities subject to the Guaranty Lien of the Pledge Agreement;
(vi) appropriate stock transfer powers endorsed in blank by each applicable Loan Party with respect to the certificates referred to in the immediately preceding subsection;
(vii) the Security Agreement executed by each of the Borrower and the other Loan Parties substantially in the form of Exhibit M;
(viii) with respect to each of the Uniform Commercial Code financing statements naming each Loan Party as debtor, NationsBank as secured party, and filed pursuant to the Existing Credit Agreement, a Uniform Commercial Code assignment statement executed by NationsBank as assignor in favor of the Agent as assignee;
(ix) favorable UCC, tax and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no prior Liens on any of the Collateral other than Permitted Liens or Liens to be terminated prior to the Effective Date;
(iv) (Ax) an opinion of ▇Trou▇▇▇▇ & ▇▇▇d▇▇▇ ▇▇▇, counsel to the BorrowerLoan Parties, in substantially the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion form of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the LendersExhibit N;
(vxi) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state State of formation of such PersonLoan Party;
(vixii) a certificate Certificate of good standing (Good Standing or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state State of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualified;
(viixiii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsNotices of Swingline Borrowing;
(viiixiv) copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xv) a certificate executed by the chief executive officer or chief financial officer of the Borrower, stating that: (i) on such date, and after giving effect to the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing and (ii) the representations and warranties made or deemed made by the Borrower or any other Loan Party in the Loan Documents are true and correct in all material respects on and as of such date with the same effect as though made on and as of such date;
(xvi) certificates of insurance evidencing the existence of all insurance required to be maintained by each Loan Party pursuant to the Loan Documents, together with loss payable clauses as required by such Loan Documents;
(xvii) a key man life insurance policy on the life of Rami▇ ▇. ▇▇▇▇▇, ▇.D., in the amount of $2,500,000, naming the Borrower as beneficiary;
(xviii) copies of all executed Management Services Agreements;
(xix) the Collateral Assignment of Management Services Agreements executed by PSC Management and each Other Manager, if any, relating to all such Management Services Agreements;
(ixxx) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Axxi) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of all financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsstatements described in Section 6.1.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each requesting Lender and complying with the terms of Section 2.11.(a); 2.12.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Dateintentionally omitted;
(iv) intentionally omitted;
(Av) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells US LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to matters reasonably requested by the Agent and the LendersAdministrative Agent;
(vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending year ended December 31, 20062020;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedintentionally omitted;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) intentionally omitted;
(xiv) intentionally omitted;
(xv) the Fee Letter;
(xvi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with with, to the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxvii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There since December 31, 2020, there shall not have occurred any material adverse condition or become known to material adverse change in or affecting, or the Agent occurrence of any circumstance or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary condition that has had or could reasonably be expected to result in a material adverse change in, or have a Material Adverse EffectEffect on, the business, assets, liabilities, condition (financial or otherwise), or operations of the Parent, the Borrower and their Subsidiaries;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ivi) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, and (ii) at least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, on behalf of itself and any Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to itself and to such Guarantor, to each Lender that so requests such a Beneficial Ownership Certification.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement on the date hereof (and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the initial making of a Loan or the issuance of a Letter of CreditCredit on the date of such effectiveness, if any) is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties Loan Party party hereto;
(ii) to the extent requested by the relevant Lender, Revolving Notes and Bid Rate Notes executed by the BorrowerBorrowers, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a); 2.10(a) and the Swingline Note executed by the BorrowerBorrowers;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as each of the Effective DateGuarantors initially party thereto;
(iv) [intentionally omitted];
(Av) an opinion of ▇▇▇▇▇ Weil, Gotshal & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent Borrowers and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders as to such matters as the Administrative Agent may reasonably request;
(vvi) an opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and the Lenders as to such matters as the Administrative Agent may reasonably request;
(vii) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(viviii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedLoan Party;
(viiix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the BorrowerBorrowers, authorized to execute and deliver on behalf of the Borrower Borrowers Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Closing Date;
(xii) [intentionally omitted];
(xiii) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions; provided, the Administrative Agent hereby confirms that the search reports required by this clause (xiii) have been received;
(xiv) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.05, together with and, to the extent invoiced prior to the Closing Date, all other fees, expenses and reimbursement amounts due and payable to the Arranger, the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and[intentionally omitted];
(bxvi) In the good faith judgment a certificate of the Agent:
(i) There shall not have occurred or become known Chief Financial Officer of the Parent and the Partnership to the Agent or any effect that (A) all representations and warranties of the Lenders Loan Parties contained in this Agreement and the other Loan Documents are true and correct, in all material respects (except to the extent any eventrepresentation and warranty is qualified by materiality or Material Adverse Effect, conditionin which case such representation and warranty shall be true and correct in all respects), situation as of the Closing Date (except to the extent such representations or status warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date)), (B) upon giving effect to the transactions hereunder as of the Closing Date, no Default or Event of Default has occurred and is continuing, (C) since December 31, 20052012 no event or condition has occurred or arisen, concerning either individually or in the Borroweraggregate, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in have a Material Adverse Effect or and (BD) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially all governmental and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all material third party approvals necessary filings and notices as shall be required to consummate in connection with the transactions contemplated hereby (which approvals, consents and waivers all material governmental and third party approvals necessary in connection with the continuing operations of the Parent and its Subsidiaries shall have been obtained and be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ivxvii) There the Borrowers and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(iiA) Revolving Notes and executed by Borrower, payable to each Lender, (B) Bid Rate Notes executed by the Borrower, each in the full amount of the potential Bid Rate Borrowing and one payable to all Lenders and any Designated each Lender, if applicableand (C) a Swingline Note executed by Borrower and payable to the Swingline Lender, and each complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower2.11;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerBorrower and such other Loan Parties as Administrative Agent shall request, the Parent and the other Guarantors addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to substantially in the Agent addressed to the Agent and the Lendersform set forth in Exhibit H;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party (A) the Borrower, certified as of a recent date by the Secretary of State of the State of organization of such Person, and (B), each of the other Loan Parties, certified as of a recent date (and with reference to documents filed and certified by the applicable state Secretary of formation State) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Borrower and each of the other Loan Party Parties issued as of a recent date by the Secretary of State of the state of formation of each such Person and and, within thirty (30) days following the Effective Date, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedowns a Pool Asset;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each of the other Loan Party Parties with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requestsrequests for Letters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of the Borrower of (Ax) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity Borrower and (By) all corporate, partnership, member corporate or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered a Pool Certificate calculated as of for the Effective DateBorrower’s fiscal quarter ending September 30, 2005;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062005;
(xi) evidence satisfactory to the Administrative Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, Fees then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a fully executed and satisfactory Solvency Certificate for each Guarantor and provided by the Chief Financial Officer of Borrower in the form attached as Exhibit L hereto;
(xiii) a certificate from Borrower (A) certifying that all Persons required by Section 8.14 to become Guarantors hereunder have executed a Guaranty and become parties to the Indemnity and Contribution Agreement, and (B) listing the Subsidiaries and Unconsolidated Affiliates which are not becoming Guarantors hereunder by operation of the proviso in Section 8.14(a), which listing shall include a certification to Administrative Agent and Lenders (along with a statement as to the reasons why) that such Persons are not required to become a Guarantors; and
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or will make contemporaneously with the making of the first Loan or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and.
(ivc) There Borrowers shall not have occurred or exist paid to Administrative Agent, for the benefit of Lenders, all interest and other fees due under the Prior Credit Agreement, prorated to the effective date of this Agreement and, subject to the provisions of Section 2.1(a) with respect to the repayment of outstanding Bid Rate Loans, any other material disruption repayment of financial or capital markets that could reasonably be expected Loan principal required to materially and adversely affect remain in compliance with the transactions contemplated reduced Total Commitment Amount effectuated by the Loan DocumentsAgreement.
(d) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the outstanding balances referenced on Schedule 1.1(A) attached hereto.
Appears in 1 contract
Sources: Credit Agreement (Equity One Inc)
Initial Conditions Precedent. The obligation of following are the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedentInitial Conditions Precedent:
(a) The Agent shall have received each copies of a resolution of the followingMain SPV's, the Shareholder's and each Greif Transaction Party's board of directors (except for the German Originators), and any other necessary corporate documents, approving the Transaction Documents to which it will become a party and the other documents to be delivered by it and the transactions contemplated hereunder;
(b) a director's certificate of each Originator certifying as to such Originator's solvency;
(c) copies of the constitutive documents of the Main SPV, the Shareholder and each Greif Transaction Party;
(d) a certificate of the Main SPV, the Shareholder and each Greif Transaction Party certifying:
(i) the names and signatures of the officers authorised on behalf of such party to execute the Transaction Documents to which it will become a party and any other documents to be delivered by it hereunder, on which certificate the Main SPV and the Funding Administrator may conclusively rely until such time as the Main SPV and the Funding Administrator shall receive from such party a revised certificate meeting the requirements of this paragraph; and
(ii) the authenticity of the constitutive documents of such party.
(e) legal opinions from:
(i) legal counsel in the relevant jurisdictions to the Greif Transaction Parties in form and substance satisfactory to the Agent:Main SPV and the Funding Administrator regarding (i) due execution by, and corporate authority of each Greif Transaction Party, (ii) the validity and enforceability of the obligations of the Greif Transactions Parties under and in connection with the Transaction Documents to which they are expressed to be a party and (iii) the perfection of the sale and transfer of the Receivables Purchase Agreements (other than the Nieuw Amsterdam Receivables Purchase Agreement) and such other matters concerning such Greif Transaction Party as the Main SPV and/or the Funding Administrator may require; and
(ii) legal counsel in the relevant jurisdictions to the Funding Administrator regarding (i) the due execution and corporate authority of Main SPV, (ii) the validity and enforceability of the obligations of Main SPV under and in connection with the relevant Transaction Documents to which Main SPV is expressed to be a party, (iii) the enforceability of the Main SPV Security Documents, and (iv) the sale of the Receivables;
(f) a copy of the Servicing Agreement as executed;
(g) a copy of the Nieuw Amsterdam Receivables Purchase Agreement (which has been, for the avoidance of doubt, been replaced by the Nieuw Amsterdam Receivables Funding Agreement) as executed;
(h) a copy of the Receivables Purchase Agreements as executed;
(i) counterparts of this Agreement executed by each a copy of the parties heretoSubordinated Loan Agreement as executed;
(iij) Revolving Notes and Bid Rate Notes executed by a copy of the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the BorrowerAdministration Agreement as executed;
(iiik) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty copy of each Management Agreement as of the Effective Dateexecuted;
(ivl) (A) an opinion a copy of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenderseach Security Agreement as executed;
(vm) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State copy of the state of formation of such PersonMaster Definitions Agreement as executed;
(vin) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State copy of the state of formation of each such Person Performance and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, Indemnity Agreement as applicable) of each state in which such Person is required to be so qualifiedexecuted;
(viio) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each copy of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsLiquidity Facility Agreement as executed;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xip) evidence satisfactory to the Facility Agent that the Existing Credit Agreement Transaction Security has been paid or will be perfected in full and that accordance with all commitments thereunder have been terminatedapplicable laws, including but not limited to any notice required to be provided under any Collection Account Pledge Agreement;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiiq) evidence satisfactory to the Facility Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any required UCC filing has been completed;
(r) confirmation from each of the Lenders, including without limitationRating Agencies that upon execution of the Nieuw Amsterdam Receivables Purchase Agreement, the fees and expenses of counsel to the Agent, have been paidCommercial Paper will maintain their then current rating; and
(xivs) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment a copy of the Agent:
(i) There shall not Funding Cost Fee Letter as executed and evidence that the fees, costs and expenses then due from the Greif Transaction Parties pursuant thereto have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsbeen paid.
Appears in 1 contract
Sources: Amendment Agreement (Greif, Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the AgentAdministrative Agent and the Lenders:
(i) counterparts Counterparts of this Agreement and the Subsidiary Guaranty executed by each of the parties heretohereto and thereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lendereach Lender (other than a Lender that has requested not to receive a Revolving Note or a Term Note, if as applicable, ) and complying with the terms applicable provisions of Section 2.11.(a); 2.11, and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date[Reserved];
(iv) (A) an opinion Opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to NSA REIT and the BorrowerLoan Parties (limited in scope to NSA REIT, the Parent Borrower and the other Guarantors each Subsidiary Guarantor), addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Administrative Agent and the Lenders;
(v) the certificate or The articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of NSA REIT and each Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of NSA REIT and such PersonLoan Party, or in lieu thereof a certification from NSA REIT and each Loan Party that its articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) have not changed from those previously delivered to the administrative agent under the Existing Credit Agreement;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to NSA REIT, the Borrower, each Loan Party Subsidiary Guarantor, issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of NSA REIT and each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which the failure of NSA REIT and such Person is required Loan Party to be so qualifiedqualified could reasonably be expected to result in a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of NSA REIT and each Loan Party with respect to each of the officers of NSA REIT and such Person Loan Party authorized to execute and deliver the Loan Documents to which NSA REIT and such Person Loan Party is a party, and in the case of the Borrower, and the officers of NSA REIT, as general partner of the Borrower, then authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of ConversionBorrowings, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of NSA REIT and each Loan Party of (Ax) the by-laws of NSA REIT and such PersonLoan Party, if a corporation, the operating agreementagreement of NSA REIT and such Loan Party, if a limited liability company, the partnership agreementagreement of NSA REIT and such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity entity, or in lieu thereof a certification from NSA REIT and each Loan Party that its by-laws, the operating agreement, the partnership agreement or other comparable document have not changed from those previously delivered to the administrative agent under the Existing Credit Agreement and (By) all corporate, partnership, member or other necessary action taken by NSA REIT and such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, The Fees then due and payable under Section 3.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Agent and any of the Lenders, including without limitationAdministrative Agent, the fees Titled Agents and expenses the Lenders on or prior to the Effective Date (including the reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent);
(x) The results of a recent UCC lien search in the jurisdiction of organization of the Borrower, which search results shall reveal no Liens on any of the assets of the Borrower except for Liens permitted by Section 10.6 or discharged on or prior to the Effective Date pursuant to a payoff letter or other documentation reasonably satisfactory to the Administrative Agent;
(xi) [Reserved];
(xii) [Reserved];
(xiii) Evidence of amendments to the Borrower’s (or any other Loan Party’s) existing senior Unsecured Indebtedness in a form and substance satisfactory to the Administrative Agent, to reflect conforming changes contemplated by this Agreement;
(xiv) A Compliance Certificate calculated as of June 30, 2019 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xv) A certificate signed by a Responsible Officer, certifying that the conditions set forth in Section 6.1(b) have been paidsatisfied;
(xvi) such due diligence with respect to Eligible Unencumbered
(xvii) All documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9 (October 2018 form), as applicable, and the Certification of Beneficial Ownership for each such new Loan Party; and
(xivxviii) such Such other documents documents, agreements and instruments as the Agent, or any Lender through the Agent, may reasonably request; andthe
(b) In the good faith judgment determination of the AgentAdministrative Agent and the Lenders:
(i) There shall not have occurred or become known Both immediately before and immediately after giving effect to the Agent or any financing contemplated by this Agreement and the use of the Lenders any eventproceeds of the Loans to be funded on the Effective Date, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect no Default or Event of Default exists, (B) restrain the representations and warranties made or enjoin, impose materially burdensome conditions on, or otherwise materially deemed made by NSA REIT and adversely affect, the ability of any each Loan Party to fulfill its obligations under in the Loan Documents to which it is a partyparty are true and correct in all material respects (or in all respects to the extent that such representations and warranties are already subject to concepts of materiality) on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in such respects on and as of such earlier date);
(ii) There shall not have occurred any material adverse change since December 31, 2018, in the business, assets, operations or condition (financial or otherwise) of NSA REIT and any Loan Party, or in the facts and information regarding NSA REIT and any Loan Party provided by or on behalf of NSA REIT and any Loan Party to the Administrative Agent or any Lender;
(iii) The Borrower After giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, there shall not have occurred any event or condition that constitutes an “event of default” (howsoever defined) or that, with the giving of any notice, the passage of time, or both, would be an “event of default” under any of NSA REIT or the Loan Parties’ financial obligations (other Loan Parties than de minimis obligations) in existence on the Effective Date; and
(iv) NSA REIT and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any material default under, material conflict with or material violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which NSA REIT or any Loan Party is a party or by which NSA REIT, any of them Loan Party or their respective properties is are bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (National Storage Affiliates Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and each applicable Lender (excluding any Designated Lender, if applicable, Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); 2.12
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerParent, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit L;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedLoan Party;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Maximum Loan Availability Certificate calculated as of the Effective Date;
(x) Appraisals of all Secured Pool Properties, together with all other due diligence reasonably requested by the Administrative Agent with respect to each Secured Pool Property, including, to the extent requested by the Administrative Agent, the items set forth on Schedule 6.1 hereto;
(xi) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending December 31September 30, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated2014;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Agreement shall have been paid in full and all Liens securing, and Guarantees by any Loan Parties supporting, such indebtedness, liabilities or other obligations have been released;
(xiv) copies of all Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease to be used for each Property from the Agent Effective Date until the Revolving Termination Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) evidence that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Arrangers and any of the LendersLenders pursuant to the Fee Letter or pursuant to the terms of this Agreement, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xvii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Administrative Agent of any cancellation for nonpayment of premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Lenders, the Issuing Banks, and the Specified Derivatives Providers is named as a mortgagee lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Borrower, any Loan Party or any other Subsidiary actually maintains with respect to any Property and improvements on such Property; and
(xivxviii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Parent and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to ;
(1e) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to fulfill its obligations under comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Loan Documents to which it is a partyPatriot Act; and
(ivf) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Tier Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a); 2.10.
(a) and the Swingline Note executed by the Borrower;
; (iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;
thereto; (iv) (A) an opinion of ▇▇▇▇▇ & Pillsbury ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & Bird LLP, counsel to the Agent Parent, the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
Lenders and in a form acceptable to the Administrative Agent; (v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
Loan Party; (vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; andof
(b) In the good faith judgment of the Administrative Agent:
: (i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
; (ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.a
Appears in 1 contract
Sources: Credit Agreement (Saul Centers Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.(a); 2.10.(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of S▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird Worcester LLP, and an opinion of S▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect and each state in which a Collateral Property owned by such Loan Party is located;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062017;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) [intentionally omitted];
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiii) the Borrower Letter executed by the Borrower; and
(xiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Agent and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes Swingline Note executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower2.11.;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Parent, the Borrower, the Parent and the other Guarantors Guarantors, addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth on Exhibit I;
(v) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of Swingline Borrowing and requests for Letters of Credit;
(vi) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(vii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Loan Party Guarantor, certified as of a recent date by the Secretary of State of the state State of formation of such Person;
(viviii) a certificate Certificate of good standing (Good Standing or certificate of similar meaning) meaning with respect to the Parent, the Borrower and each Loan Party Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(viiix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Guarantor with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the Parent, the Borrower and each Guarantor of the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(Bxi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as copy of the Crown Merger Agreement Dateand any other material documents executed in connection therewith requested by the Agent, together with all amendments and supplements thereto, certified by a officer of the Parent to be true, correct and complete copies and in full force and effect;
(xiii) evidence satisfactory a certificate of the chief executive officer, chief financial officer or other senior officer of the Parent stating that all conditions precedent to the Agent that consummation of the Fees, if any, then due and payable under Section 3.6.Crown Transaction as set forth in the Crown Merger Agreement have been satisfied or waived, together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any a file-stamped copies of the Lenders, including without limitation, articles of merger of PREIT and Crown filed with the fees Secretary of the Commonwealth of the Commonwealth of Pennsylvania and expenses the Secretary of counsel to State of the Agent, have been paidState of Maryland;
(xiv) a letter from the administrative agent under each of the Existing Credit Agreements providing information regarding the payment in full of amounts outstanding thereunder (other than the Letters of Credit described on Schedule 2.2.(a)) and providing for the termination thereof; and
(xivxv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and.
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any the Borrower and the other Loan Party or any other Subsidiary Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in have a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with under or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Tranche B Term Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable, and to the extent such Lender has required to receive Notes) and complying with the terms of Section 2.11.(a); 2.12.
(a) and the Swingline Note Notes executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date[reserved];
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lenders;may reasonably request; LEGAL02/40926073v6
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s four (4) quarter fiscal quarter period ending December 31June 30, 20062021;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) [reserved];
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default LEGAL02/40926073v6 under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ive) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (Elme Communities)
Initial Conditions Precedent. The closing and effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:precedent (as confirmed to the Lenders by Administrative Agent):
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a2.9.(a); and the Swingline Note executed by the Borrower;
(iii) the Parent Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateParent;
(iv) (A) an opinion opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, in-house and outside counsel to the Borrower, of the Parent and the Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders in form and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel substance acceptable to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party (i) the Borrower and the Parent certified as of a recent date by the Secretary of State of the state of formation of such Person and (ii) each other Loan Party filed with the Secretary of State of the state of formation of such Person, and in each case, certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Parent and each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062013;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) the Fee Letter;
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiv) the duly executed Officer’s Certificate;
(xv) a certificate, signed by a Senior Officer, stating that as of the Effective Date (x) no Default or Event of Default exists or will exist immediately after giving effect to the making of the Term Loan on such date, and (y) all representations and warranties of the Borrower are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects); and
(xivxvi) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party; and;
(iv) There the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001));
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(vi) the Administrative Agent shall have received a timely Notice of Borrowing. The Borrower shall be deemed to have represented to the Administrative Agent and the Lenders at the time such Loan is made that to the best of the Borrower’s knowledge all conditions to the making of such Loan contained in this Article VI. have been satisfied.
Appears in 1 contract
Sources: Term Loan Agreement (CBL & Associates Properties Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of make the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all the Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a2.13.(a); and the Swingline Note executed by the Borrower;
(iii) the Parent Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Subsidiary Guaranty as of executed by the Effective DateInitial Subsidiary Guarantors;
(iv) the Hazardous Material Indemnity executed by the Borrower and the Parent Guarantor;
(A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells US LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent and the Lenders Loan Parties, and (B) an opinion of ▇▇▇▇▇▇ & Bird LLPlocal counsel reasonably satisfactory to Administrative Agent, as special counsel to the Agent Loan Parties, each addressed to the Administrative Agent and the LendersLenders and collectively covering the matters set forth in Exhibit H;
(vvi) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requestsrequests for disbursement from any FF&E Reserve Account, Tax Reserve Account or Insurance Reserve Account;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent Guarantor’s fiscal quarter ending December ended March 31, 20062010;
(xi) evidence satisfactory each of the items referred to in Section 6.3. shall be delivered with respect to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedInitial Collateral Properties;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the Agent assets of each such Loan Party other than Permitted Liens;
(xiv) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xv) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5. (including, without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Administrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Lenders is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Borrower, any Loan Party or any other Subsidiary actually maintains with respect to any Property and improvements on such Property; and
(xivxvi) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the BorrowerParent Guarantor, the Parent, any other Loan Party or any other Subsidiary Borrower and their Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;; and
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(iiA) Revolving Notes and executed by Borrower, payable to each Lender, (B) Bid Rate Notes executed by the Borrower, each in the full amount of the potential Bid Rate Borrowing and one payable to all Lenders and any Designated each Lender, if applicableand (C) a Swingline Note executed by Borrower and payable to the Swingline Lender, and each complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower2.11;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerBorrower and such other Loan Parties as Administrative Agent shall request, the Parent and the other Guarantors addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to substantially in the Agent addressed to the Agent and the Lendersform set forth in Exhibit H;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party (A) the Borrower, certified as of a recent date by the Secretary of State of the State of organization of such Person, and (B), each of the other Loan Parties, certified as of a recent date (and with reference to documents filed and certified by the applicable state Secretary of formation State) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Borrower and each of the other Loan Party Parties issued as of a recent date by the Secretary of State of the state of formation of each such Person and and, within thirty (30) days following the Effective Date, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedowns a Pool Asset;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each of the other Loan Party Parties with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requestsrequests for Letters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of the Borrower of (Ax) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity Borrower and (By) all corporate, partnership, member corporate or other necessary action taken by such Person Borrower to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered a Pool Certificate calculated as of for the Effective DateBorrower’s fiscal quarter ending June 30, 2008;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 20062008;
(xi) evidence satisfactory to the Administrative Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, Fees then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a fully executed and satisfactory Solvency Certificate for each Guarantor and provided by the Chief Financial Officer of Borrower in the form attached as Exhibit L hereto;
(xiii) a certificate from Borrower (A) certifying that all Persons required by Section 8.14 to become Guarantors hereunder have executed a Guaranty and become parties to the Indemnity and Contribution Agreement, and (B) listing the Subsidiaries and Unconsolidated Affiliates which are not becoming Guarantors hereunder by operation of the proviso in Section 8.14(a), which listing shall include a certification to Administrative Agent and Lenders (along with a statement as to the reasons why) that such Persons are not required to become a Guarantors; and
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and.
(b) In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or will make contemporaneously with the making of the first Loan or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and.
(ivc) There Borrowers shall not have occurred or exist paid to Administrative Agent, for the benefit of Lenders, all interest and other fees due under the Prior Credit Agreement, prorated to the effective date of this Agreement and, subject to the provisions of Section 2.1(a) with respect to the repayment of outstanding Bid Rate Loans, any other material disruption repayment of financial or capital markets that could reasonably be expected Loan principal required to materially and adversely affect remain in compliance with the transactions contemplated reduced Total Commitment Amount effectuated by the Loan DocumentsAgreement.
(d) Lenders, as applicable, shall have completed whatever balancing transfers amongst themselves as are necessary in order to result in each Lender having the outstanding balances referenced on Schedule 1.1(A) attached hereto.
Appears in 1 contract
Sources: Credit Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as disbursement of Loan proceeds hereunder on the making of a Loan or the issuance of a Letter of Credit, Third Modification Effective Date is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the AgentAdministrative Agent or as specified in the exhibits hereto:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and each Lender complying with the terms of Section 2.11.(a2.8(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Dateintentionally omitted;
(iv) (A) an opinion of O’Melveny & ▇▇▇▇▇ & ▇▇▇▇▇▇▇LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters required by Administrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party issued within thirty (30) days of the date hereof and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of a compliance certificate, in the Effective Date;
(x) a Compliance Certificate calculated form delivered to Administrative Agent prior to the date hereof on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 20062016;
(x) a Disbursement Instruction Agreement effective as of the Third Modification Effective Date;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedintentionally omitted;
(xii) a Transfer Authorizer Designation Form effective as copies of all Material Contracts in existence on the Agreement Third Modification Effective Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with Fee Letter;
(xiv) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersLenders as required hereunder, including including, without limitation, the reasonable and actually incurred fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxv) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Encumbrances;
(xvi) a complete listing of all Subsidiaries which are Non-Guarantors;
(xvii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably requestrequest of the Borrower in writing;
(xviii) projections through 2019 that the Lenders deem satisfactory; and
(xix) evidence of all material governmental and third party approvals necessary in connection with the continuing operations of the Group Members and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
(b) In the reasonable good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31, 20052015, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all material approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to ;
(1iv) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to fulfill its obligations under comply with the Loan Documents to which it is a partyUSA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Healthcare Trust of America Holdings, LP)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Advances is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower2.10;
(iii) the Parent Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateParent;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, of the Parent and the other Guarantors Loan Parties, addressed to the Agent and the Lenders and (B) an opinion covering certain of ▇▇▇▇▇▇ & Bird LLP, counsel the matters set forth in Article VI hereof and such additional matters relating to the transactions contemplated hereby as Agent addressed to the Agent and the Lendersmay request;
(v) a certificate signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of Borrower and the Parent certifying that there has been no change to the certificate or articles of incorporation, articles of organization, partnership agreement, certificate of limited partnership, declaration of trust or trust, operating agreement, by-laws and other comparable organizational instrument (if any) instruments of each Loan Party certified as and the Parent since November 30, 2007 (the date of a the most recent date certification signed by the Assistant Secretary of State of the state of formation of such PersonParent);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party and the Parent issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party and the Parent with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Loan Party and the Parent (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of for the Effective DateBorrower's fiscal quarter ending December 31, 2007;
(x) a certificate of the Chief Financial Officer or the Chief Accounting Officer of Borrower, substantially in the form of a Compliance Certificate calculated on a pro forma basis for Certificate, certifying that as of the Borrower’s fiscal quarter ending December 31date of Closing, 2006and taking into account the Loan, the Borrower and Parent are in compliance with the requirements of Section 9.1;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, Fees then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, Lenders have been paid; and
(xivxii) such other documents and instruments as the Agent, or any Lender through the Agent, Agent may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The the Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party or the Parent is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, or any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Unsecured Term Loan Agreement (CBL & Associates Properties Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms applicable provisions of Section 2.11.(a); 2.11, and the Swingline Note executed by the Borrower;
(iii) the Facility Guaranty executed by the Parent and any each other Person that would be required under Section 8.13. the Borrower elects to become make a party to the Guaranty as of Guarantor on the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent and Agent, the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to Swingline Lender addressing the Agent and the Lendersmatters set forth in Exhibit N;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Person Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline BorrowingBorrowings, requests for Letters of CreditBid Rate Quote Requests, Notices of ConversionBid Rate Quote Acceptances, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as a certificate from a Responsible Officer of the Parent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) the Fees then due and payable under Section 3.6, and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xxi) a Compliance Certificate calculated on a as of June 30, 2012 (giving pro forma basis for effect to the Borrower’s fiscal quarter ending December 31, 2006financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date);
(xixii) evidence satisfactory to that, simultaneously with the Agent that execution of this Agreement, the Existing Credit Agreement dated as of August 31, 2007 among the Borrower, the Parent, the lenders party thereto and Wachovia Bank, N.A., as administrative agent, has been paid in full and that all commitments thereunder have been irrevocably terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence a copy of an executed amendment to the Existing Term Loan Facility by which the covenants thereunder are conformed to the covenants set forth herein, in form and substance reasonably satisfactory to the Agent that and the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paidBorrower; and
(xiv) such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request, including all documentation and other information requested by any Lender not less than five (5) Business Days prior to the Agreement Date that is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including information described in Section 12.13 with respect to the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status concerning the Parent or its Subsidiaries since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary 2011 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the reasonable satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 13.13(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page that such party has signed a counterpart of this Agreement or such Loan Document);
(ii) Revolving to the extent requested by the Lenders, Notes and Bid Rate Notes executed made by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a2.10(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) an opinion of each of (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent and the Lenders Loan Parties and (B) an opinion of ▇▇▇▇▇▇▇ & Bird ▇▇▇▇▇ LLP, Maryland counsel to the Agent Spirit REIT, addressed to the Administrative Agent and the LendersLenders and covering the matters reasonably required by the Administrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state of formation of each such Person and certificates Loan Party issued as of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifieda recent date;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 20062022;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form completed Borrower Administrative Questionnaire effective as of the Agreement Date;
(xi) [reserved];
(xii) copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Agreement Date;
(xiii) the Fee Letter;
(xiv) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxv) such UCC, tax, judgment and lien search reports with respect to each Loan Party in its jurisdiction of organization indicating that there are no liens of record other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; andthan Permitted Liens.
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known any material adverse change in the Borrower’s financial condition since the date of the most recent quarterly financial statement filed with the SEC on Form 10-K prior to the Agent or any date of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effectthis Agreement;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ivi) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes, Bid Rate Notes and Bid Rate Swingline Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable, applicable but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a2.12.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, legal counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such customary matters as may be required by the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) copies of the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, currently authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 20062018;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent that Loan Parties under the Existing Credit Agreement has shall have been paid in full and that all commitments commitments, if any, thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act;
(f) at least five (5) days prior to the Agreement Date, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then Borrower shall deliver to the Administrative Agent a Beneficial Ownership Certification; and
(ivg) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableLenders, and complying with the terms of Section 2.11.(a)2.12.; and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Arent Fox LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Guarantors, and addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit O;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(x) an Unencumbered Pool Certificate calculated as of the Effective Date;
(xxi) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated2007;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Dateintentionally deleted;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Loan Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender requesting a Revolving Note or Term Loan Note and complying with the terms applicable provisions of Section 2.11.(a); 2.11., and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent KRG Magellan, each Subsidiary that owns or leases an Initial Unencumbered Pool Property and any other Person that would Subsidiary which is otherwise required to be required under a Guarantor pursuant to Section 8.13. to become a party to the Guaranty 4.3., if any, as of the Effective Date, and the Springing Guaranty executed by the Parent;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party or a certification from the Secretary of the Parent that there have been no changes to such organizational instrument since the date such organizational instrument was previously provided to the Agent;
(viv) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each the state in which such Person is required to be so qualifiedLoan Party has its principal place of business;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of ConversionBorrowings, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity or a certification from the Secretary of the Parent that there have been no changes to such documents since the date such document was previously provided to the Agent and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties, if anyaddressed to the Agent, the Lenders and the Swingline Lender, in form reasonably satisfactory to the Agent;
(ix) an Unencumbered Pool Certificate calculated as of the Fees then due and payable under Section 3.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date to the extent such Fees have been invoiced prior to the Effective Date;
(x) a Compliance Certificate calculated on a as of the Effective Date (using unaudited pro forma basis for the Borrower’s fiscal quarter ending December consolidated figures as of March 31, 20062014 after giving effect to the merger of Inland Diversified with and into KRG Magellan and giving pro forma effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated[Reserved];
(xii) a Transfer Authorizer Designation Form effective as closing of the Agreement Datemerger of Inland Diversified into KRG Magellan;
(xiii) if applicable, a disbursement statement setting forth in reasonable detail the application of the initial Loans being funded on the Effective Date;
(xiv) evidence satisfactory that any lenders under the Existing Credit Agreement and the Existing Term Loan Agreement that are not becoming or continuing (as applicable) as Lenders hereunder have agreed to the Agent that the Fees, if any, then due and payable under Section 3.6., together with accept repayment of all other fees, expenses and reimbursement amounts due them under the Existing Credit Agreement and payable to the Agent Existing Term Loan Agreement and any terminate their commitments thereunder, as applicable;
(xv) evidence of the Lendersrelease of Parent from any guaranty, including including, without limitation, the fees and expenses guaranty in favor of counsel The Huntington National Bank with respect to the Agent, have been paidParkside Town Commons project; and
(xivxvi) such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and.
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any the Borrower and its other Loan Party or any other Subsidiary Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The the Parent, the Borrower and the its other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred party or exist any other material disruption the ability of financial or capital markets that could reasonably be expected the Agent to materially and adversely affect the transactions contemplated by the Loan Documentsexercise its remedies hereunder.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders Issuing Bank to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, is Credit and the obligation of each Bank to make Advances pursuant to the terms and conditions of this Agreement are subject to the satisfaction or waiver of condition precedent that the following conditions precedent:
(a) The Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this This Agreement executed by each of Borrower, each Bank, the parties hereto;
Issuing Bank, and the Administrative Agent, (ii) Revolving the Notes and Bid Rate Notes (if any) payable to the order of the Banks, respectively, executed by the Borrower, payable to all Lenders and any Designated Lender, if applicablerespective Borrowers, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;Parent.
(ivb) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an An opinion of ▇▇▇▇▇▇ & Bird ▇. ▇▇▇▇▇, in-house counsel for the Borrowers, in form and substance reasonably satisfactory to the Administrative Agent.
(c) An opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Borrowers, in form and substance reasonably satisfactory to the Agent addressed Administrative Agent.
(d) An opinion of ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for EOIC, in form and substance reasonably satisfactory to the Agent and the Lenders;Administrative Agent.
(ve) the certificate or articles Certified copies of incorporationall governmental approvals, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of , necessary for each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect Borrower to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of enter into the Loan Documents to which it is a party, if any;party and perform its obligations thereunder.
(ixf) A certificate of the Secretary or an Unencumbered Pool Certificate calculated Assistant Secretary of each Borrower certifying (i) the resolutions of the Board of Directors of such Borrower approving this Agreement, the other Loan Documents, and the transactions contemplated hereby, in each case evidencing any necessary company action, (ii) the name and true signature of an agent or agents of each Borrower authorized to sign each Loan Document to which such Borrower is a party and the other documents to be delivered hereunder, and (iii) attached true and correct copies of the Bylaws and Articles of Incorporation (or corresponding organizational documents) of such Borrower.
(g) A certificate of the chief executive officer or the chief financial officer of the Parent certifying that (i) insurance complying with Section 5.01(d) is in full force and effect, (ii) no Material Adverse Change has occurred since December 31, 2004, (iii) no Default or Event of Default exists, (iv) all representations and warranties made by the Borrowers in Section 4.01 are correct in all material respects on and as of the Effective Date;
date of the initial Advances (xother than those representations and warranties that expressly relate solely to a specific earlier date, which shall be correct in all material respects as of such earlier date), and (v) a Compliance Certificate calculated on a pro forma basis the attached annual audited financials for the Borrower’s fiscal quarter ending year ended December 31, 2006;2004 and the attached quarterly unaudited financials for the fiscal quarter ended March 31, 2005 are true and correct copies of such financials, fairly present the financial condition of the Parent as of such dates, and were, to the best of such officer’s knowledge, prepared in conformity with GAAP.
(xih) evidence satisfactory Certificates of existence, good standing and qualification from appropriate state officials with respect to the Parent, and such corresponding certificates or other documents from Cayman Islands officials or agencies as the Administrative Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;reasonably requests with respect to EOIC.
(xiii) a Transfer Authorizer Designation Form effective as Evidence of payment by the Agreement Date;
(xiii) evidence satisfactory Borrowers of all fees and disbursements required to be paid by the Agent that Borrowers on the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lendersdate hereof, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiv) such other documents and instruments as the Syndication Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan DocumentsJoint Lead Arrangers.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(iiA) Revolving Notes and Bid Rate Five Year Term Notes executed by the Borrower, payable to all Lenders and each Five Year Term Lender (other than any Designated Lender, if applicable, Five Year Term Lender that has requested that it not receive a Five Year Term Note) and complying with the terms applicable provisions of Section 2.11.(a); 2.8.(a) and the Swingline Note (B) Seven Year Term Notes executed by the Borrower, payable to each Seven Year Term Lender (other than any Seven Year Term Lender that has requested that it not receive a Seven Year Term Note) and complying with the applicable provisions of Section 2.8.(b);
(iii) the The Guaranty executed by the Parent and any each other Person that would be required under Section 8.13. to become a party to the Guaranty Guarantor existing as of the Effective Date;
(iv) (A) an opinion A Transfer Authorizer Designation Form effective as of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the LendersAgreement Date;
(v) An opinion of counsel to the certificate or Loan Parties, addressed to the Administrative Agent and, the Lenders, addressing the matters set forth in Exhibit H;
(vi) The articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State (or comparable official) of the state of formation of such PersonLoan Party;
(vivii) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State (or comparable official) of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (or comparable official and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower Notices then authorized to deliver the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Borrowing and Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion;
(viiiix) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (By) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for If requested by the Borrower’s fiscal quarter ending December 31Administrative Agent, 2006certificates of insurance evidencing the existence of all insurance required to be maintained by Loan Parties pursuant to the Agreement, and the Administrative Agent shall be reasonably satisfied with the type and extent of such coverage;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, The Fees then due and payable under Section 3.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Agent Administrative Agent, the Titled Agents and any the Lenders on or prior to the Effective Date;
(xii) A Compliance Certificate calculated as of March 31, 2011 (giving pro forma effect to the financing contemplated by this Agreement and the use of the Lenders, including without limitation, proceeds of the fees and expenses of counsel Loans to be funded on the Agent, have been paidEffective Date); and
(xivxiii) such Such other documents documents, agreements and instruments as the Agent, or any Lender through Administrative Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAdministrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any the Borrower and the other Loan Party or any other Subsidiary Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material adverse change or material disruption of financial in the loan syndication, financial, banking or capital markets that that, in the reasonable judgment of the Sole Lead Arranger, has impaired or could reasonably be expected to materially and adversely affect impair, the transactions contemplated by syndication of the Loan DocumentsLoans, either (i) occurring on or after May 18, 2011, or (ii) occurring prior to May 18, 2011 but becoming known to the Sole Lead Arranger after May 18, 2011.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan any Revolving Loans or Bid Rate Loans, or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Documentation Agent shall have received each of the following, in form and substance satisfactory to the AgentArranging Agents:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a2.10.(a) and (b); and the Swingline Note executed by the Borrower;
(iiiA) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party An opinion of Shulman, Rogers, Gandal, Pordy & ▇▇▇▇▇, P.A., counsel to the Guaranty as Borrower, addressed to the Arranging Agents and the Lenders, in substantially the form of the Effective Date;
Exhibit M-1 and (iv) (AB) an opinion of Kennedy, Covington, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., local North Carolina counsel to the Borrower, addressed the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent Arranging Agents and the Lenders, in substantially the form of Exhibit M-2;
(iv) the declaration of trust of the Borrower certified as of a recent date by the Department of Consumer and Regulatory Affairs of the District of Columbia;
(v) a good standing certificate issued as of a recent date by the Department of Consumer and Regulatory Affairs of the District of Columbia and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified;
(vi) A certificate of incumbency signed by the Secretary or Assistant Secretary of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit;
(vii) certified copies (certified by the Secretary or Assistant Secretary of the Borrower) of all action taken by the Borrower's Board of Trustees to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) A Guaranty executed by each Material Subsidiary other than any Non-Guarantor Subsidiary in substantially the form of Exhibit C; (ix) The articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party Material Subsidiary certified as of a recent date by the Secretary of State of the state of formation of such Person;
Material Subsidiary; (vix) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party Material Subsidiary issued as of a recent date by the Secretary of State of the state of formation of each such Person Material Subsidiary and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Material Subsidiary is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoan, is subject to the reasonable satisfaction or waiver pursuant to Section 13.6 of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed to the extent requested by the Lenders, a Note made by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a2.8(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) an opinion of each of (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent and the Lenders Loan Parties and (B) an opinion of ▇▇▇▇▇▇▇ & Bird ▇▇▇▇▇ LLP, counsel to the Agent Spirit REIT, addressed to the Administrative Agent and the LendersLenders and covering the matters reasonably required by Administrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by from the Secretary of State (or equivalent Governmental Authority) of the state of formation of each such Person and certificates Loan Party issued as of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifieda recent date;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as copies of all Material Contracts and confirmations relating to Specified Derivatives Contracts in existence on the Effective Agreement Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31ended September 30, 20062018;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with and (y) all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the AgentAdministrative Agent in each case to the extent invoices therefor have been presented at least two Business Days prior to the Effective Date, have been paid;
(xii) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens; provided that with respect to county-level real property searches, such searches may be dated up to six (6) months prior to the date hereof and cover certain (but not all) Unencumbered Pool Assets as identified to the Administrative Agent prior to the Agreement Date; and
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known any material adverse change in the Borrower’s financial condition since the date of the most recent quarterly financial statement filed with the SEC on Form 10-K prior to the Agent or any date of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effectthis Agreement;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound;
(i) To the extent requested by the Administrative Agent (on behalf of itself or any Lender) in writing at least five Business Days prior to the Effective Date, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to fulfill its obligations comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Loan Documents Beneficial Ownership Regulation, at least five days prior to which it is the Effective Date, any Lender that has requested, in a partywritten notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied); and
(ivf) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a the Term Loan or the issuance of a Letter of Credithereunder, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, Borrower payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); and the Swingline Note executed each Lender (which Notes shall be promptly forwarded by the BorrowerAgent to the applicable Lender);
(iii) the The Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty each Guarantor existing as of the Effective Date;
(iv) (A) an A favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerObligors, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders, addressing such matters as Agent may reasonably require;
(v) The Governing Documents of the certificate Borrower, each Guarantor and each general partner, managing member (or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if anyPerson performing similar functions) of each Loan Party such Persons certified as of a recent date by the Secretary of State of the state State of formation of such the applicable Person;
(vi) a certificate of A good standing (or certificate of similar meaning) with respect to the Borrower, each Loan Party Guarantor and each general partner, managing member (or Person performing similar functions) of such Persons issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualifiedqualified and where the failure to be so qualified would have, in each instance, a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of the Borrower, each Loan Party with respect Guarantor and their respective general partners, managing members (or Person performing similar functions) as to each of the partners, officers of such Person or other Persons authorized to execute and deliver the Loan Documents to which such Person any of them is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf officers or other representatives of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners, managing members (or other individual Persons performing similar functions) Loan Party of (A) the by-laws of such PersonPersons of all partnership, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (Bcomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party, if any;
(ix) The Fees then due and payable under Section 3.6, and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(x) A Compliance Certificate calculated as of December 31, 2008;
(xi) Copies of the Unencumbered Asset Qualification Documents for each of the Properties included as an Unencumbered Pool Certificate calculated Asset as of the Effective Date;
(xxii) There shall have occurred a Compliance Certificate calculated on a pro forma basis for contemporaneous closing under the Borrower’s fiscal quarter ending December 31Revolving Credit Agreement, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder conditions precedent thereto shall have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;satisfied; and
(xiii) evidence satisfactory to the Agent that the FeesSuch other documents, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and.
(b) Each Departing Lender shall have received payment in full with respect to its “Commitment Percentage” (as defined in the Original Loan Agreement) of the Loans (as defined in the Original Loan Agreement) and the other obligations under the Original Loan Agreement.
(c) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parentother Obligors, any other Loan Party or any other Subsidiary and their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any Loan Party other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower and Borrower, the other Loan Parties Obligors and their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any Loan Party other Obligor is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Wells Real Estate Investment Trust Ii Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Security Instrument shall be a valid lien upon the Property, prior and superior to all other liens and encumbrances thereon except those approved by Administrative Agent in writing;
(b) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts all Loan Documents, other documents, instruments, policies, and forms of evidence or other materials requested by Administrative Agent under the terms of this Agreement executed by each or any of the parties heretoother Loan Documents;
(ii) Revolving Notes and Bid Rate Notes executed by a new ALTA survey of the BorrowerProperty, payable certified to all Administrative Agent, for the benefit of Lenders and any Designated Lenderthe title insurer, if applicableshowing the boundaries of the Property by courses and distances, together with a corresponding metes and bounds description, the actual or proposed location of all improvements, encroachments and restrictions, the location and width of all easements, utility lines, rights-of-way and building set-back lines, and complying with notes referencing book and page numbers for the terms of Section 2.11.(a); and instruments granting the Swingline Note executed by the Borrowersame;
(iii) a new Appraisal of the Guaranty executed by Property (A) certifying an “as-stabilized” Appraised Value sufficient so that the Parent and any other Person that would be required under Section 8.13. to become ratio (expressed as a party percentage) of the amount of the Loan to the Guaranty as “as-stabilized” Appraised Value of the Effective DateProperty does not exceed 60%, and (B) estimating an Adjusted NOI for calendar year 2013 sufficient to produce a DSCR (using such estimated Adjusted NOI for 2013) of not less than 1.25:1.00;
(iv) (A) an a legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the LendersLoan Parties;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing“Fixed Rate Notices”, Notices of Swingline Borrowing, and requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requestsdisbursement from the FF&E Reserve Account;
(viii) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as A certificate of Guarantor attaching a complete and accurate depiction of the Effective Datedirect and indirect owners of Borrower and Operating Lessee;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.2.4, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiii) insurance certificates, or other evidence, providing that the insurance coverage required under Article V (including, without limitation, both property and liability insurance for the Property) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to Administrative Agent of any cancellation for nonpayment or premiums, and not less than thirty (30) days prior written notice to Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that Administrative Agent, for its benefit and the benefit of Lenders is named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that Borrower or any Loan Party actually maintains with respect to the Property and improvements thereon; and
(xiv) such other documents and instruments as the Security Documents;
(xv) a Management Agreement Subordination with respect to the Management Agreement;
(xvi) copies of all Material Contracts (to the extent not theretofore delivered) and, if requested by Administrative Agent, collateral assignments executed by Borrower or any Lender through Operating Lessee (as applicable) in favor of Administrative Agent for its benefit and the benefit of Lenders, of the Material Contracts relating to the use, occupancy, operation, maintenance, enjoyment or ownership of the Property;
(xvii) an ALTA 2006 Form Loan Policy of Title Insurance for the Property in the aggregate amount of the original principal amount of the Loan in favor of Administrative Agent for its benefit and the benefit of Lenders, including endorsements with respect to such items of coverage as Administrative Agent may request (including, without limitation, aggregation endorsements for each policy) and which endorsements are available and customary in the jurisdiction where the Property is located, issued by First American Title Insurance Company, showing Borrower’s fee simple title to the Property, and Operating Lessee’s leasehold interest in the Property, and other Collateral described in the Security Instrument as vested in Borrower and Operating Lessee, respectively, and insuring that the Lien granted by the Security Instrument is a valid Lien against the Property and the Collateral described therein, subject only to liens, restrictions, encumbrances, easements and reservations as are acceptable to Administrative Agent (the “Title Policy”);
(xviii) receipt and approval of the current Capital Budget, Operating Budget and Marketing Plan;
(xix) receipt and approval of a reliance letter from The Planning & Zoning Resource Corporation with respect to its March 9, 2007 zoning report with respect to the Property, and a copy of such zoning report;
(xx) receipt and approval by Administrative Agent of a property conditions report with respect to the Property (the “Property Conditions Report”) and funds from Borrower, to be held in escrow with Administrative Agent, may reasonably requestin an amount equal to one hundred twenty percent (120%) of the cost estimated in the Property Condition Report to complete any “immediate repairs” (or similar) as identified therein (to be disbursed to Borrower by Administrative Agent upon Administrative Agent’s confirmation of completion of such “immediate repairs”);
(xxi) receipt and approval by Administrative Agent of a phase I (and phase II if necessary) environmental assessment report with respect to the Property; and
(bxxii) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the such other instruments, documents, agreements, financing statements, certificates, opinions and other Security Documents as Administrative Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could may reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsrequest.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.11(a) at least three (3) days prior to the date hereof, Revolving Notes and Bid Rate Credit Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of of, Section 2.11.(a); 2.11(a) and the Swingline a Term Loan Note executed by the Borrower, payable to each applicable Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11(a);
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Hogan Lovells LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party of the Borrower and the Parent Guarantor issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person a Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the Existing Credit Agreement has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006[intentionally omitted];
(xi) evidence satisfactory to a Compliance Certificate dated as of the Agent that the Existing Credit Agreement has been paid in full Date and that all commitments thereunder have been terminatedcalculated as of March 31, 2023;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory that the Fees (including, to the Agent that extent then due, the “Fees” (under and as defined in the Existing Credit Agreement) and interest under the Existing Credit Agreement accrued through the Effective Date), if any, then due and payable under Section 3.6.3.5, together with with, to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the date hereof, all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the reasonable and documented fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivi) all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower;
(xv) evidence of the payoff of the outstanding amount of all term loans provided under the Five-Year Term Loan Agreement (as defined in the Existing Agreement);
(xvi) a copy of a duly executed amendment to the Capital One Term Loan Agreement, consistent with the modifications contemplated hereby;
(xvii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a2.12(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party an opinion of outside counsel to the Guaranty Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as of the Effective DateAdministrative Agent may request;
(iv) (A) an opinion copies of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonPerson (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Conversion and Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiivii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, if anya certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viii) a closing certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an authorized officer of the Borrower;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Disbursement Instruction Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiix) a pro forma Compliance Certificate prepared as of September 30, 2023;
(xi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There the Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and (ii) all Existing Term Loans that are not repaid or assumed as part of the Refinancing shall have been repaid in full;
(c) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party Administrative Agent and the Lenders by or any other Subsidiary on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(iid) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiie) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivg) There the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case, at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a); 2.11. and the Swingline Note executed by the Borrower, payable to the Swingline Lender;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ White & ▇▇▇▇▇▇▇Case LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Guarantors, and addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit L;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Borrowing Base Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062004;
(xi) evidence satisfactory of such insurance as is required pursuant to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedSection 8.5.;
(xii) a Transfer Authorizer Designation Form effective as with respect to each Property identified on Schedule 4.1., each of the Agreement Dateitems referred to in Section 6.3. required to be delivered in connection with any Collateral Property;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid;
(xiv) Letters from the administrative agent under the Existing Credit Agreement providing information regarding the payment in full of amounts outstanding thereunder and providing for the termination thereof and all Liens granted in connection therewith; and
(xivxv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable, applicable but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); 2.12.(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto, if any;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, in-house or outside counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersmay request;
(v) copies of the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonPerson (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Asset Certificate calculated as of the Effective Date;March 31, 2015,
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 2006;2015,
(xi) evidence satisfactory to a Closing Certificate substantially in form of Exhibit T, executed on behalf of the Agent that Borrower by an authorized officer of the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedBorrower;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent Loan Parties under the Existing Credit Agreement shall have been paid in full;
(xiv) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party Administrative Agent and the Lenders by or any other Subsidiary on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ive) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of CreditLoans, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower2.9.;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Arent Fox PLLC counsel to the Borrower, the Parent Borrower and the other Guarantors Guarantors, and addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit G;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of BorrowingBorrower, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Guarantor (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(xi) a Compliance Certificate (A) for the Borrower’s fiscal quarter ending September 30, 2007; (B) calculated on a pro forma basis for the Borrower’s fiscal year ending December 31, 2007; and (C) calculated on a pro forma basis for each of the Borrower’s fiscal quarters ending in 2008;
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xivxiii) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Washington Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of Banks to make ---------------------------- the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a initial Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction condition that on or waiver of before the following conditions precedent:
Effective Date, (a) The Agent there shall have received been delivered to Administrative Agent with counterparts for each of the following, Bank and in form and substance satisfactory to Administrative Agent, each dated the AgentEffective Date unless otherwise indicated:
(i) counterparts of this Agreement The Guaranties, duly executed and delivered by each of the parties heretoGuarantors;
(ii) Revolving Notes Certified copies of the resolutions of the Board of Directors of each Obligor approving this Agreement, and Bid Rate Notes executed by the Borrower, payable to of all Lenders documents evidencing other necessary corporate action and any Designated Lendergovernmental approvals, if applicableany, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrowerrespect to this Agreement;
(iii) A certificate of the Guaranty executed by Secretary or an Assistant Secretary of each Obligor certifying the Parent names and any true signatures of the officers of such Obligor authorized to sign this Agreement and the other Person that would documents to be required under Section 8.13. delivered hereunder;
(iv) Certified copies of each Obligor's Certificate of Incorporation or Deed of Incorporation, together with a good standing certificate from its jurisdiction of incorporation, each to become be dated a party recent date prior to the Guaranty as of the Effective Date;
(ivv) Copies of each Obligor's Memorandum of Association and Articles of Incorporation or Articles of Association and Extract from Commercial Register, certified as of the Effective Date by its Secretary or an Assistant Secretary;
(vi) Favorable opinions of (A) an opinion ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Bahamas counsel for the Borrower and Dish Placement, substantially in the form of Exhibit F-1 hereto, (B) Trenite Van Doorne, counsel for White Holding, substantially in the Form of Exhibit F-2 hereto, (C) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, New York counsel to for the BorrowerObligors, substantially in the Parent and form of Exhibit G hereto, (D) the other Guarantors addressed to the Agent and the Lenders and (B) an opinion Assistant General Counsel of ▇▇▇▇▇▇ & Bird LLP▇, substantially in the form of Exhibit H-1 hereto, and (E) counsel to for each Guarantor (other than ▇▇▇▇▇▇), substantially in the Agent addressed to the Agent and the Lenders;
(v) the certificate or articles form of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedExhibit H-2 hereto;
(vii) a certificate A favorable opinion of incumbency signed by O'Melveny & ▇▇▇▇▇ LLP, special counsel for the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a partyAdministrative Agent, and substantially in the case form of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsExhibit I hereto;
(viii) Certified copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents resolutions of the Board of Directors of each Guarantor, approving the Guaranty to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to such Guaranty;
(ix) an Unencumbered Pool Certificate calculated as A certificate of the Effective DateSecretary or an Assistant Secretary of each Guarantor (or, in the case of a foreign Guarantor, a similar officer for companies in such foreign country) certifying the names and true signatures of the officers of such Guarantor authorized to sign the Guaranty to which it is a party and the other documents to be delivered hereunder;
(x) Certified copies of the Certificate of Incorporation of each Guarantor above, together with good standing certificates from the jurisdiction of its incorporation and its principal place of business, each to be dated a Compliance Certificate calculated on a pro forma basis recent date prior to the Effective Date (or, with respect to foreign Guarantors, such appropriate similar documents for the Borrower’s fiscal quarter ending December 31, 2006companies in such foreign country);
(xi) evidence satisfactory Copies of the Bylaws of each Guarantor (or, with respect to ▇▇▇▇▇▇▇ Investments LLC, its Memorandum of Association and Articles of Association), certified as of the Agent that Effective Date by its Secretary or an Assistant Secretary (or, in the Existing Credit Agreement has been paid case of ▇▇▇▇▇▇▇ Investments LLC, a similar officer for companies in full and that all commitments thereunder have been terminated;the Cayman Islands); and
(xii) a Transfer Authorizer Designation Form effective Such other instruments, information or documents as of the Agreement Date;
(xiii) evidence satisfactory to the Administrative Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, Majority Banks may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Agent and the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, initial Loans hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(aSections 2.9.
(a) and (b); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Parent, the Borrower, the Parent and the other Guarantors Guarantors, addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth on Exhibit C;
(v) a certificate of incumbency signed by the Secretary or Assistant Secretary of the Parent with respect to each of the officers of the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which the Parent or the Borrower is a party and to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(vi) a certified copy (certified by the Secretary or Assistant Secretary of the Parent) of all necessary action taken by the Parent to authorize the execution, delivery and performance of the Loan Documents to which either the Parent or the Borrower is a party;
(vii) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party Guarantor that directly, or indirectly through one or more Subsidiaries, owns, or is to acquire any interest in, a ▇▇▇▇▇ Property (or any Equity Interest in a Person that has an interest in a ▇▇▇▇▇ Property), certified as of a recent date by the Secretary of State of the state State of formation of such Person;
(viviii) a certificate Certificate of good standing (Good Standing or certificate of similar meaning) meaning with respect to each Loan Party such Guarantor (and in the case of a limited partnership, the general partner of such Guarantor) issued as of a recent date by the Secretary of State of the state State of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(viiix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Guarantor with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of each Guarantor that directly, or indirectly through one or more Subsidiaries, owns, or is to acquire any interest in, a ▇▇▇▇▇ Property (Aor any Equity Interest in a Person that has an interest in a ▇▇▇▇▇ Property) of the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity;
(Bxi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of all corporate, partnership, member or other necessary action taken by such Person each Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as Compliance Certificate based on the Parent's fiscal quarter ending March 31, 2003 detailing the pro forma effect of (A) the acquisition of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Mall, The Gallery I and Exton Mall and the funding of the Agreement Dateentire Term Commitment and (B) the acquisition of all ▇▇▇▇▇ Properties and the funding of the entire Commitments;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any the Borrower and the other Loan Party or any other Subsidiary Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in have a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Parent, the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with under or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower Borrower, the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
: (a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach applicable Lender that has requested that it receive Notes, and complying with the terms of Section 2.11.(a2.12.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrowereach Subsidiary Guarantor, the Parent and the each other Guarantors addressed to the Agent and the Lenders and Required Guarantor; (Biv) [reserved]; (v) an opinion letter of ▇▇▇▇▇▇ & Bird LLPLLP and ▇▇▇▇▇▇▇ LLP (with respect to Maryland law matters), counsel to the Agent Borrower and the other Loan Parties addressed to the Administrative Agent and the Lenders;
Lenders in form and substance acceptable to the Administrative Agent; (vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
Loan Party; (vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualified;
qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
Continuation; (viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of 70 any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (x) [reserved]; (xi) evidence of property, business interruption and liability insurance covering each Eligible Property in form and substance reasonably acceptable to the Administrative Agent, and if any;
requested by the Administrative Agent, copies of such insurance policies; (ixxii) an Unencumbered Pool Certificate calculated as [reserved]; (xiii) a certificate signed by a Responsible Officer of the Effective Date;
Borrower certifying that the conditions specified in Sections 6.1.(b) through (xd) and Section 6.2. have been satisfied; (xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 2006;
2025; (xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
; (xiiixvi) [reserved]; (xvii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
and (xivxviii) such other documents and instruments as copies of all Specified Derivatives Contracts in existence on the Agent, or any Lender through the Agent, may reasonably requestAgreement Date; and
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
; (iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
; (iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.notices
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each requesting Lender and complying with the terms of Section 2.11.(a); 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) the Pledge Agreement executed by each of the Pledgors initially to be a party thereto;
(Av) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells US LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to matters reasonably requested by the Agent and the LendersAdministrative Agent;
(vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending December 31ended June 30, 20062016;
(xi) evidence satisfactory Each document (including, without limitation, any UCC financing statement) and all actions required by any Loan Document or under Applicable Law or reasonably deemed necessary or appropriate by the Administrative Agent to be entered into, filed, registered or recorded or taken, in order to create in favor of the Administrative Agent, for the benefit of the Lender Parties, a perfected first-priority Lien in the Collateral as of the Effective Date, shall have been entered into, filed, registered, recorded, taken or shall have been delivered to the Administrative Agent that the Existing Credit Agreement has been paid and be in full and that all commitments thereunder have been terminatedproper form for filing, registration or recordation, as appropriate;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory that all indebtedness, liabilities or obligations owing by the Loan Parties under the Master Loan and Security Agreement dated as of March 7, 2013, among ▇.▇. ▇▇▇▇▇▇ Chase Bank, N.A. and ▇▇▇▇▇ Fargo, as lenders, and the subsidiaries of the Parent identified therein, as borrowers, as amended, supplemented or otherwise modified, shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xiv) UCC, tax and lien search reports with respect to each Pledgor in all reasonably necessary or appropriate jurisdictions indicating that there are no Liens of record on the Agent Collateral other than Permitted Liens of the types described in clauses (a) and (f) of the definition of such term (other than Liens to be released simultaneously on the Effective Date as contemplated by clause (xiii) above);
(xv) the Fee Letter;
(xvi) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with with, to the extent a reasonably detailed invoice thereof has been presented to the Borrower prior to the Effective Date, all other reasonable and documented out-of-pocket fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxvii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in have a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower, any other Loan Party or the Parent to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ive) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes, Bid Rate Notes and Bid Rate Swingline Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable, applicable but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a2.12.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, legal counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such customary matters as may be required by the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) copies of the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, currently authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 20062015;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent that Loan Parties under the Existing Credit Agreement has Agreements shall have been paid in full and that all commitments commitments, if any, thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(ivf) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and each applicable Lender (excluding any Designated Lender, if applicable, Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); 2.12(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerParent, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit L;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party (or certification from the Secretary of the applicable Loan Party that there have been no changes thereto since the Original Closing Date);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedLoan Party;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Maximum Loan Availability Certificate calculated as of the Effective Date;
(x) Appraisals of all Secured Pool Properties, together with all other due diligence reasonably requested by the Administrative Agent with respect to each Secured Pool Property, including, to the extent requested by the Administrative Agent, the items set forth on Schedule 6.1 hereto;
(xi) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending December March 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated2015;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory that all accrued and unpaid interest, fees and expenses then due and owing by the Loan Parties under the Existing Credit Agreement as of the Effective Date shall have been paid in full;
(xiv) copies of all Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease to be used for each Property from the Agent Effective Date until the Revolving Termination Date and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) evidence that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Arrangers and any of the LendersLenders pursuant to the Fee Letters or pursuant to the terms of this Agreement, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xvii) insurance certificates, or other evidence, providing that the insurance coverage required under Section 8.5 (including, without limitation, both property and liability insurance) is in full force and effect and stating that the coverage shall not be cancelable or materially changed without ten (10) days prior written notice to the Administrative Agent of any cancellation for nonpayment of premiums, and not less than thirty (30) days prior written notice to the Administrative Agent of any other cancellation or any modification (including a reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and the benefit of the Lenders, the Issuing Banks, and the Specified Derivatives Providers is named as a mortgagee lender’s loss payee and additional insured, as appropriate, on all insurance policies that the Borrower, any Loan Party or any other Subsidiary actually maintains with respect to any Property and improvements on such Property; and
(xivxviii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Parent and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to ;
(1e) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to fulfill its obligations under comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Loan Documents to which it is a partyPatriot Act; and
(ivf) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Tier Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.11.(a); 2.11.
(a) and the a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersmay reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter previous four calendar quarters ending December 31on June 30, 20062018;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectmaterially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(ive) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) the Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.11.(a); 2.11.
(a) and the a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of L▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of W▇▇▇▇▇▇ & Bird LLP, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter previous four calendar quarters ending December 31on June 30, 20062018;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effectmaterially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(ive) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) the Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a); each applicable Lender that has requested that it receive Notes and the Swingline Note executed by the BorrowerBorrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and, in each case, complying with the terms of Section 2.12.(a);
(iii) the Guaranty executed by each Subsidiary Guarantor, the Parent and any each other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateRequired Guarantor;
(iv) (Ai) the Pledge Agreement, executed by each of the Parent, General Partner, ▇▇▇▇▇▇▇▇ and each Subsidiary Guarantor party thereto from time to time and (ii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent Borrower and the other Loan Parties addressed to the Administrative Agent and the LendersLenders in form and substance acceptable to the Administrative Agent;
(vvi) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vivii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(viiviii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) original stock certificates or other certificates evidencing the certificated Equity Interests, as applicable, pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof;
(xi) evidence of property, business interruption and liability insurance covering each Eligible Property, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazard insurance and as additional insured on all policies for liability insurance), in each case, in form and substance reasonably acceptable to the Administrative Agent, and if requested by the Administrative Agent, copies of such insurance policies;
(xii) any other documents reasonably requested thereby or as required by the terms of the Security Documents to perfect or evidence its security interest in the Collateral;
(xiii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 6.1.(b) through (e) and Section 6.2. have been satisfied;
(xiv) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20062019;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixvi) evidence satisfactory to that all indebtedness, liabilities or obligations owing by the Agent Loan Parties under the Existing Credit Facilities shall have been paid in full and all Liens securing such indebtedness, liabilities or other obligations have been released;
(xvii) evidence that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xviii) copies of all Specified Derivatives Contracts in existence on the Agreement Date; and
(xivxix) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the offering of the Equity Interests of the Parent, pursuant to an offering memorandum substantially similar to the draft thereof previously provided to the Administrative Agent and the Lenders, prior to the date hereof (the “Equity Offering”), shall have been completed on terms and conditions acceptable to the Administrative Agent, including, without limitation, the Parent’s receipt of gross cash proceeds of the Equity Offering in an aggregate amount not less than $175 million, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be acceptable to the Administrative Agent;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivg) There each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.(a2.8.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇▇ & Bird Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31ended September 30, 20062011;
(x) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, payable to all Lenders and each applicable Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.(a); 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors, if any, initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersmay reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 20062017;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a copy of all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower; and
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(ivf) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is and the effectiveness of the amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction or waiver of the following conditions precedent:
: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
: (i) counterparts of this Agreement executed by each of the parties hereto;
; (ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;
Parent; (iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to in the Agent addressed to the Agent and the Lenders;
form set forth in Exhibit J; (v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
Loan Party; (vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualified;
qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices the Notice of Swingline Term Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote Requests;
Continuation; (viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.- 73 - LEGAL02\42427047.v4
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent::
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent::
(i) counterparts of this Agreement executed by each of the parties hereto;;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.11.(a); 2.11.
(a) and the a replacement Swingline Note executed by the Borrower;;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;thereto;
(iv) (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersmay reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualified;qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote Requests;Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter previous four calendar quarters ending December 31on June 30, 2006;2018;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [Reserved];
(xii) copies of all Material Contracts in existence on the Agreement Date and either entered into or amended in any material respect after April 2, 2015;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5.;
(xv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ive) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.;
(f) the Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(g) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.11.(a); 2.11(a) and the a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersmay reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter previous four calendar quarters ending December 31on June 30, 20062025;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that all Indebtedness under the Existing Term Loan Agreement shall have been (or, substantially concurrently with the occurrence of the Effective Date, will be) discharged and repaid in full, and all commitments to extend credit thereunder shall have terminated;
(xii) evidence that all Indebtedness under the Existing BofA Term Loan Agreement shall have been (or, substantially concurrently with the occurrence of the Effective Date, will be) discharged and repaid in full, and all commitments to extend credit thereunder shall have terminated;
(xiii) copies of all Material Contracts in existence on the Agreement Date;
(xiv) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xv) certificates of insurance evidencing the insurance then in effect with respect to the Properties and otherwise in compliance with Section 8.5;
(xvi) a customary certificate, dated the Effective Date and signed by an authorized officer of the Borrower, certifying as to the matters set forth in clauses (b), (c) and (d) below and Sections 6.2(a) and (b) (as of the Effective Date after giving effect to this Agreement and any borrowings or other extensions of credit hereunder that may be made on the Effective Date); and
(xivxvii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;materially adverse effect on the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Parent, the Borrower and the Subsidiaries taken as a whole;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (Ai) result in a Material Adverse Effect or (Bii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The Borrower and the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (Ai) any Applicable Law or (Bii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and;
(ive) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents;
(f) the Borrower shall have (or substantially contemporaneously with the transactions contemplated to occur on the Effective Date will have) applied (or directed the Administrative Agent to apply) the proceeds of Term Loans funded on the Effective Date to repay Revolving Loans in an amount equal to at least $50,000,000;
(g) the Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(h) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable, ) and complying with the terms of Section 2.11.(a); 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors, if applicable, initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇▇▇ & Bird ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering the matters set forth in Exhibit O;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 20062025;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date, solely to the extent reasonably requested by the Administrative Agent prior to the Agreement Date;
(xiiixi) [intentionally omitted];
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the LendersArrangers, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with the requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations;
(v) each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case at least five Business Days prior to the Agreement Date; and
(ivvi) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms of Section 2.11.(a); 2.11. and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Parent, and any other Person that would be required under Section 8.138.14. to become a party to the Guaranty as of the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerParent, the Parent and Borrower and, unless otherwise agreed by the Agent with respect to a given Guarantor, each of the other Guarantors that owns any Unencumbered Pool Property, addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit J;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Parent, the Borrower and each Loan Party of the other Guarantors that owns any Unencumbered Pool Property certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to the Parent, the Borrower and each Loan Party of the other Guarantors that owns any Unencumbered Pool Property issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ax) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and entity, (By) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty and (z) in the case of any Guarantor other than the Parent and any Guarantor that owns an Unencumbered Pool Property, the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of such Person;
(ix) an a Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s Parent's fiscal quarter ending December 31ended September 30, 20062001;
(xi) evidence satisfactory to the Agent pro forma calculations, together with detailed assumptions, establishing that the Existing Credit Agreement has been paid Parent, and when appropriate its consolidated Subsidiaries, will be in full and that all commitments thereunder have been terminatedcompliance with the covenants contained in Section 10.1. at the end of each of the next eight fiscal quarters;
(xii) a Transfer Authorizer Designation Form effective as copy of the Agreement DateExisting Credit Agreement, including all amendments thereto;
(xiii) evidence satisfactory the Fleet Assignment Agreement executed and delivered by the parties thereto;
(xiv) the copies (or originals if available) of each outstanding Note (as defined in the Existing Credit Agreement) held by any Lender (as defined in the Existing Credit Agreement) that is not also a Lender under this Agreement (and in the case of originals, duly endorsed to the order of ▇▇▇▇▇ Fargo);
(xv) copies of each of the New York Collateral Documents, including all amendments thereto, showing all recording information thereon certified as true, correct and complete by an authorized officer of the Parent;
(xvi) assignments of each of the New York Collateral Documents executed by the Existing Agent, such assignments relating to the applicable Mortgages to be substantially in the form of Exhibit L (each a "Mortgage Assignment");
(xvii) modifications to each of the New York Collateral Documents executed by the applicable Loan Parties, such modifications relating to the applicable Mortgages to be substantially in the form of Exhibit M (each a "Mortgage Modification");
(xviii) all documents necessary in the sole discretion of the Agent that to release any Liens created in connection with, or otherwise securing any obligations of any Loan Party owing in connection with, the FeesExisting Credit Agreement, if any, then due and payable under Section 3.6.other than the New York Collateral Documents;
(xix) copies of each environmental assessments reports on the Properties subject to the New York Collateral Documents available to the Borrower, together with all other fees, expenses and reimbursement amounts due and payable reliance letters from the environmental engineering firms performing such assessments addressed to the Agent and any of the Lenders;
(xx) an Environmental Indemnity Agreement executed by the Borrower and the Parent with respect to each Property subject to a New York Collateral Document, including without limitation, such agreement to be substantially in the fees and expenses form of counsel to the Agent, have been paidExhibit N (each an "Environmental Indemnity Agreement"); and
(xivxxi) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and.
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Parent and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;; and
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation -34- of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower and the Florida Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms applicable provisions of Section 2.11.(a); 2.10., and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by Holdings, each Subsidiary that owns or leases a Collateral Property as of the Parent Effective Date and each Material Subsidiary (other than any other Person that would be required under Section 8.13. to become a party to the Guaranty Exempt Subsidiary) as of the Effective Date;
(iv) (A) an opinion or opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders, addressing the matters set forth in Exhibit H;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of ConversionBorrowings, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a certificate from a Responsible Officer of the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) evidence of the payment of all Fees then due and payable under Section 3.6., and any other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xi) a Borrowing Base Certificate calculated as of the Effective Date;
(xxii) a Compliance Certificate calculated on a as of June 30, 2006 (giving pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory effect to the Agent that financing contemplated by this Agreement and the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as use of the Agreement proceeds of the Loans to be funded on the Effective Date);
(xiii) evidence satisfactory to letters from the Agent that administrative agent under each Existing Credit Agreement providing information regarding the Fees, if any, then due payment in full of amounts outstanding under such Existing Credit Agreement and payable under Section 3.6., together with providing for the termination thereof and the release of all other fees, expenses and reimbursement amounts due and payable to the Agent and Liens securing any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; andobligations owing thereunder;
(xiv) all of the items required to be delivered under Sections 4.1. and 4.2. with respect to each Property identified on Schedule 4.1.;
(xv) such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning Holdings, the Borrower, the Parent, any other Loan Party or any Parties and the other Subsidiary Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to to
(A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and Holdings, the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
(c) When all of the conditions contained in the immediately preceding subsections (a) and (b) have been satisfied or waived in accordance with the terms hereof, the Agent shall promptly notify the Borrower and the Lenders thereof.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable, applicable but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a); 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to addressing such matters as the Administrative Agent addressed to the Agent and the Lendersmay reasonably require;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) Governing Documents of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to Borrower, each Loan Party Guarantor and each general partner, and each managing member (or Person performing similar functions) of such Persons issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualifiedqualified and where the failure to be so qualified would have, in each instance, a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of Borrower, each Loan Party with respect Guarantor and their respective general partners and managing members (or Person performing similar functions) as to each of the partners, officers of such Person or other Persons authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners or managing members (or other individual Persons performing similar functions) Loan Party of (A) the by-laws of such PersonPersons of all partnership, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (Bcomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party, if any;
(ix) an Unencumbered Pool Certificate calculated as a copy of each document or agreement evidencing any of the Effective DateIndebtedness described in Schedule 6.1(g) as Administrative Agent may request, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s 's fiscal quarter ending December 31, 20062011;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiii) evidence that indebtedness, liabilities, or obligations owing by the Loan Parties under the Existing Credit Agreement shall be paid in full on the Agreement Date;
(xiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No there shall not have occurred any material adverse change in the business, assets, liabilities, condition (financial or otherwise), results of operations, or business prospects of the Borrower and its Subsidiaries taken as a whole;
(iii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiiiv) The Borrower and the Borrower, the other Loan Parties and the other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(v) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(ivvi) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Colonial Realty Limited Partnership)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any Designated each applicable Lender, if applicable, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the Second Amended and Restated Repayment Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective DateGuarantor;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Guarantor and general partner of the Borrower, the Parent and the other Guarantors addressed to the Administrative Agent and the Lenders in form and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel substance satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporation, articles of organization, incorporation or certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) as applicable, of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonCalifornia;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person California and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062014;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) the Fee Letter;
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The the Borrower and the each other Loan Parties Party shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1X) have a Material Adverse Effect, or (2Y) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(ive) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Revolving Credit Agreement (Ps Business Parks Inc/Ca)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (including any Designated Lender, if applicable), other than any Lender that has requested that it not receive a Note, and complying with the terms of Section 2.11.(a); 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit O;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 20062017;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Parent and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower the Parent and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain restrain, enjoin or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and any each Lender (or Designated Lender, if applicable, ) and complying with the terms applicable provisions of Section 2.11.(a); 2.11., and the Swingline Note executed by the Borrower;
(iii) the The Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty each Guarantor existing as of the Effective Date;
(iv) (A) an An opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower and those Guarantor to which, together with the Borrower, the Parent and the other Guarantors at least 90.0% of Adjusted Asset Value is attributable, addressed to the Agent and Agent, the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLPthe Swingline Lender, counsel to addressing the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit M;
(v) the certificate or The articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each such other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a A certificate of good standing (or certificate of similar meaning) meaning with respect to each such Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Credit Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline BorrowingBorrowings, requests for Letters of CreditBid Rate Quote Requests, Notices of ConversionBid Rate Quote Acceptances, Notices of Continuation and Bid Rate Quote RequestsNotices of Conversion and to request the issuance of Letters of Credit;
(viii) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Credit Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, The Fees then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel other Fees payable to the Agent, have been paidthe Titled Agents and the Lenders on or prior to the Effective Date;
(x) A Compliance Certificate calculated as of March 31, 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Closing Date);
(xi) Copies of the Intercreditor Agreement and the Pledge Agreement, together with all amendments and supplements thereto, certified by a officer of the Borrower to be true, correct and complete copies and in full force and effect;
(xii) Copies of each opinion letter delivered in connection with the Intercreditor Agreement and the Pledge Agreement, and if requested by the Agent, reliance letters from the law firms delivering such opinions stating that the Agent and the Lenders may rely on such opinion letters; and
(xivxiii) such Such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Credit Documents to which it is a party;
(iii) The Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Credit Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (St Joe Co)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunderhereunder on or after the Agreement Date, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Term Notes executed by the Borrower, in each case, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a); Section
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party , in each case, to the Guaranty as of the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & extent requested by any ▇▇▇▇▇▇▇, ;
(iii) an opinion of outside counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering such matters as the Administrative Agent addressed to the Agent and the Lendersmay reasonably request;
(viv) copies of the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation or formation of such PersonPerson (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party);
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation or incorporation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an Unencumbered Asset Certificate calculated as of December 31, if any2022 and including a pro forma listing of Unencumbered Assets as of December 31, 2022, after giving effect to the Acquisition and the other transactions occurring on the Agreement Date;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for after giving effect to the Acquisition and the other transactions occurring on the Agreement Date;
(x) a Closing Certificate substantially in form of Exhibit T, executed on behalf of the Borrower by an authorized officer of the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Term Loans under the Existing Term Loan Agreement has have been paid in full and that all commitments thereunder Liens and guarantees with respect thereto have been terminatedterminated and released (or substantially concurrently with the first Credit Event will be so paid, terminated and released), in form and substance reasonably satisfactory to the Administrative Agent;
(xii) a Transfer Authorizer Designation Form effective as of evidence that the Existing Revolving Loans and Existing Revolving Commitments under the Existing Revolver Agreement Date;have been paid in full and all Liens and guarantees with respect thereto have been terminated and released (or substantially concurrently with the first Credit Event will be so paid, terminated and released), in form and substance reasonably satisfactory to the Administrative Agent; and
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the AgentAdministrative Agent invoiced to the Borrower at least 2 Business Days prior to the Agreement Date, have been paid (or substantially concurrently with the first Credit Event will be paid; and
(xiv) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; and);
(b) In the good faith judgment of the Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31September 15, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary 2022 that has had or could reasonably be expected to result in a Material Adverse Effect;
(iic) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiid) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Lenders shall have completed their accounting, business, financial, legal, tax, environmental and regulatory due diligence investigation of the Borrower, the Guarantors and the Unencumbered Assets in scope, and with results, satisfactory to the Lenders in their sole discretion;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver to each Lender that so requests at least 5 days prior to the Agreement Date, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to the Borrower; and
(ivg) There The Acquisition shall not have occurred be consummated immediately prior to, or exist any other substantially concurrently with, the funding of the 2023 Term Loans and the availability of the Revolving Commitments in all material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect respects in accordance with the transactions contemplated by the Loan DocumentsAcquisition Agreement.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.(a); 2.10.(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇▇ & Bird Worcester LLP, and an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062017;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiiixi) [intentionally omitted];
(xii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiii) the Borrower Letter executed by the Borrower; and
(xiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, Borrower payable to all Lenders and any Designated each Lender, if as applicable, and complying with the terms applicable provisions of Section 2.11.(a); and the Swingline Note executed by the Borrower2.8;
(iii) the The Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty each Guarantor existing as of the Effective Date;
(iv) (A) an A favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerObligors, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders, addressing such matters as Agent may reasonably require;
(v) the certificate The Governing Documents of Borrower, each Guarantor, each general partner, and each managing member (or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if anyPerson performing similar functions) of each Loan Party such Persons certified as of a recent date by the Secretary of State of the state State of formation of such the applicable Person;
(vi) a certificate of A good standing (or certificate of similar meaning) with respect to Borrower, each Loan Party Guarantor and each general partner, and each managing member (or Person performing similar functions) of such Persons issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each appropriate Secretary of State (and any state department of taxation, as applicable) and certificates of qualification to transact business or other comparable certificates issued by the Secretary of State (and any state department of taxation, as applicable), of each state in which such Person is organized, in which the Unencumbered Assets owned (or leased pursuant to an Eligible Ground Lease) by such Person are located, and wherever such Person is required to be so qualifiedqualified and where the failure to be so qualified would have, in each instance, a Material Adverse Effect;
(vii) a A certificate of incumbency signed by the Secretary or Assistant Secretary general partner, secretary (or other individual Person performing similar functions) of Borrower, each Loan Party with respect Guarantor and their respective general partners and managing members (or Person performing similar functions) as to each of the partners, officers of such Person or other Persons authorized to execute and deliver the Loan Documents to which such Person any of them is a party, party and in the case of the Borrower, authorized to execute and deliver on behalf officers or other representatives of the Borrower then authorized to deliver the Notice of Borrowing and Notices of BorrowingContinuation, Notices of Swingline Borrowing, requests for Letters of Credit, and Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies Copies, certified by the Secretary general partner, secretary or Assistant Secretary other authorized Person of each of the Borrower, the Guarantors and their respective general partners or managing members (or other individual Persons performing similar functions) Loan Party of (A) the by-laws of such PersonPersons of all partnership, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited corporate (or general partnership, or other comparable document in the case of any other form of legal entity and (Bcomparable) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is such Persons are a party, if any;
(ix) an Unencumbered Pool Certificate calculated A copy of each document or agreement evidencing any of the Indebtedness described in Schedule 6.1(g) as Agent may request, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower;
(x) The Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xi) The Fees then due and payable under Section 3.6, and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(xxii) a A pro forma Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December as of March 31, 20062011;
(xixiii) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a A Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and
(xiv) such Such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parentother Obligors, any other Loan Party or any other Subsidiary and their respective Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) There shall not have occurred any material adverse change in the business, assets, liabilities, condition (financial or otherwise), results of operations, or business prospects of the Borrower and its Subsidiaries taken as a whole;
(iii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Borrower or any Loan Party other Obligor to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iiiiv) The Borrower and Borrower, the other Loan Parties Obligors and their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Borrower or any Loan Party other Obligor is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party Obligor to fulfill its their respective obligations under the Loan Documents to which it is a party; and;
(ivv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents; and
(vi) The Borrower and each other Obligor shall have provided all information requested by the Agent and each Lender in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders each Issuing Bank to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a issue any Letter of Credit, is Credit and the obligation of each Bank to make Advances pursuant to the terms and conditions of this Agreement are subject to the satisfaction or waiver of condition precedent that the following conditions precedent:
(a) The Administrative Agent shall have received each on or before the day of the initial Advance (or, if earlier, the day of issuance of the initial Letter of Credit) the following, each dated on or before such day, in form and substance satisfactory to the Agent:Administrative Agent (the day when all such conditions have been satisfied or waived is herein referred to as the "Effective Date"):
(i) counterparts of this This Agreement executed by each of Borrower, each Bank, each Issuing Bank, and the parties hereto;
Administrative Agent, (ii) Revolving the Notes and Bid Rate Notes (if any) payable to the order of the Banks, respectively, executed by the Borrower, payable to all Lenders and any Designated Lender, if applicablerespective Borrowers, and complying with the terms of Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Parent, Global, and any other Person that would be required under Section 8.13. to become a party to the Guaranty as of the Effective Date;EII.
(ivb) (A) an An opinion of R▇▇▇▇▇ ▇. ▇▇▇▇▇, in-house counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(c) An opinion of Gardere W▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(d) An opinion of M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(e) An opinion of B▇▇▇▇ & M▇▇▇▇▇▇▇, U.K. counsel for the Loan Parties, in form and substance reasonably satisfactory to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders;Administrative Agent.
(vf) the certificate or articles Certified copies of incorporationall governmental approvals, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of , necessary for each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar meaning) with respect Borrower to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of enter into the Loan Documents to which it is a party, if any;party and perform its obligations thereunder.
(ixg) A certificate of the Secretary or an Unencumbered Pool Certificate calculated Assistant Secretary of each Loan Party certifying (i) the resolutions of the Board of Directors of such Loan Party approving this Agreement, the other Loan Documents, and the transactions contemplated hereby, in each case evidencing any necessary company action, (ii) the name and true signature of an agent or agents of such Loan Party authorized to sign each Loan Document to which such Loan Party is a party and the other documents to be delivered hereunder, and (iii) attached true and correct copies of the Bylaws and Articles of Incorporation (or corresponding organizational documents) of such Loan Party.
(h) A certificate of the chief executive officer or the chief financial officer of the Parent certifying that (i) insurance complying with Section 5.01(d) is in full force and effect, (ii) no Material Adverse Change has occurred since December 31, 2009, (iii) no Default or Event of Default exists, (iv) all representations and warranties made by the Borrowers in Section 4.01 are correct in all material respects on and as of the Effective Date;
date of the initial Advances (xother than those representations and warranties that expressly relate solely to a specific earlier date, which shall be correct in all material respects as of such earlier date), and (v) a Compliance Certificate calculated on a pro forma basis the annual audited financials for the Borrower’s fiscal quarter ending year ended December 31, 2006;2009 and the quarterly unaudited financials for the fiscal quarter ended March 31, 2010, in each case delivered to the Administrative Agent prior to the Effective Date, are true and correct copies of such financials, fairly present the financial condition of the Parent as of such dates, and were, to the best of such officer's knowledge, prepared in conformity with GAAP.
(xii) evidence satisfactory Certificates of existence, good standing and qualification from appropriate state officials with respect to EII, such corresponding certificates or other documents from Cayman Islands officials or agencies as the Administrative Agent reasonably requests with respect to EOIC and Global, and such corresponding certificates or other documents from English officials or agencies as the Administrative Agent reasonably requests with respect to the Agent that the Existing Credit Agreement has been paid in full Parent and that all commitments thereunder have been terminated;EUL.
(xiij) a Transfer Authorizer Designation Form effective as Evidence of payment by the Agreement Borrowers of all fees and disbursements required to be paid by the Borrowers on the Effective Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; andthe Syndication Agents, the Co-Documentation Agents and the Joint Lead Arrangers.
(xivk) such Evidence of appointment by each of the Parent, EUL, Global, and EOIC of CT Corporation System as its domestic process agent in accordance with Section 8.14.
(l) Such other documents documents, governmental certificates, conditions, agreements and instruments lien searches as the Agent, or any Lender through the Agent, Administrative Agent may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Ensco PLC)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties heretohereto (which, subject to Section 12.14, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page);
(ii) Revolving Notes and Bid Rate Notes (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each Lender and complying with the terms applicable provisions of Section 2.11.(a); and the Swingline Note executed by the Borrower2.11;
(iii) the Facility Guaranty executed by the Parent and any each other Person that would be required under Section 8.13. the Borrower elects to become make a party to the Guaranty as of Guarantor on the Effective Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, the Parent and the other Guarantors addressed to the Agent and the Lenders in form and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAgent;
(v) the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party, or, in the case of the Parent only, certified by the Secretary or Assistant Secretary of the Parent;
(vi) a certificate of good standing (or certificate of similar meaning) meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party or its constituent partners or members authorized to execute and deliver the Loan Documents to which such Person Loan Party is a partyparty and, and in the case of the Borrower, authorized to execute and deliver on behalf the officers of the Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowing, requests for Continuation and Notices of Conversion and to request the issuance of Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote Requests;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (Ai) the by-laws of such PersonLoan Party, if a corporation, the operating agreementagreement of such Loan Party, if a limited liability company, the partnership agreementagreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as a certificate from a Responsible Officer of the Effective DateParent and the Borrower to the effect that (x) all representations and warranties of the Loan Parties contained in the Loan Documents are true, correct and complete in all material respects (or, in the case of any such representation already qualified by materiality, in all respects) and (y) immediately after giving effect to the transactions contemplated by this Agreement, no Default or Event of Default shall exist;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, Fees then due and payable under Section 3.6., together with all and any other fees, expenses and reimbursement amounts due and Fees payable to the Agent Agent, the Titled Agents and any the Lenders on or prior to the Effective Date;
(xi) a Compliance Certificate calculated as of September 30, 2024 (giving pro forma effect to the financing contemplated by this Agreement and the use of the Lendersproceeds of the Loans to be funded on the Effective Date);
(xii) (A) all documentation and other information about the Loan Parties as shall have been reasonably requested by the Agent or any Lender that it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the fees Patriot Act and expenses of counsel (B) to the Agentextent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have been paidreceived such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (B) shall be deemed to be satisfied); and
(xivxiii) such other documents documents, agreements and instruments as the Agent, or any Lender through Agent on behalf of the Agent, Lenders may reasonably request; and
(b) In the good faith judgment of the AgentAgent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status concerning the Parent or its Subsidiaries since December 31, 2005, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary 2023 that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A1) result in a Material Adverse Effect or (B2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Parent, the Borrower and the other Loan Parties Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A1) any Applicable Law or (B2) any agreement, document or instrument to which the Parent, the Borrower or any other Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Piedmont Office Realty Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes A Note executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender that has requested a Note, and complying with the terms of of, Section 2.11.(a2.11(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the “Existing Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the “Existing Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending December 31, 2006Unencumbered Pool under this Agreement;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminateda Compliance Certificate calculated as of September 30, 2012;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes A Note executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender that has requested a Note, and complying with the terms of of, Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1.;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the “Original Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the “Original Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5.;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending December 31, 2006Unencumbered Pool under this Agreement;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminateda Compliance Certificate calculated as of September 30, 2012;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each applicable Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.11.(a); 2.10.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any each of the other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, legal counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to covering the Agent addressed to the Agent and the Lendersmatters set forth in Exhibit H;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the BorrowerParent’s fiscal quarter ending December 31, 20062011;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xiix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiixi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xivxii) if required by the Administrative Agent, insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.5. (including, without limitation, both property and liability insurance) is in full force and effect;
(xiii) such other documents and instruments as the Agent, or any Lender through the Agent, Administrative Agent may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and their respective Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect Effect, other than as previously disclosed to Administrative Agent and the Lenders in writing and approved by the Administrative Agent and Lenders in writing, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Parent, the Borrower and the other Loan Parties their respective Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, bound except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to fulfill its their respective obligations under the Loan Documents to which it is a party;
(iv) the Parent, the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes A Note executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Lender that has requested a Note, and complying with the terms of of, Section 2.11.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1.;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the “Original Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the “Original Credit Agreement” (as defined in the Revolving Credit Agreement) has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5.;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending December 31, 2006Unencumbered Pool under this Agreement;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminateda Compliance Certificate calculated as of September 30, 2012;
(xii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.(a2.8.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇▇ & Bird Worcester LLP, and opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December ended March 31, 20062014;
(x) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xi) evidence satisfactory to the Agent that the Existing Credit a Disbursement Instruction Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xiv) a copy of the Stock Purchase Agreement, dated as of July 8, 2014 (the “Stock Purchase Agreement”), among CommonWealth REIT, the Borrower and RMR, certified by a Responsible Officer as the Stock Purchase Agreement for which all signature pages are being held in escrow pending receipt of funds for the purchase by each of the Borrower and RMR of their respective Applicable Shares (as defined in the Stock Purchase Agreement) at which time such signature pages will be released from escrow and a fully executed Stock Purchase Agreement will be distributed to the parties thereto, and a written certification by a Responsible Officer that all conditions precedent for the purchase by the Borrower of its Applicable Shares have been satisfied and that upon the making of the Loans the Borrower’s purchase of its Applicable Shares shall be consummated;
(xv) the Borrower Letter executed by the Borrower; and
(xivxvi) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Government Properties Income Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a2.12(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party an opinion of outside counsel to the Guaranty Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as of the Effective DateAdministrative Agent may request;
(iv) (A) an opinion copies of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonPerson (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Conversion and Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiivii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, if anya certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viii) a closing certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an authorized officer of the Borrower;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Disbursement Instruction Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiix) a pro forma Compliance Certificate prepared as of September 30, 2023;
(xi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and;
(b) In the good faith judgment of the Agent:
(i) There the Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and (ii) any portion of the Existing Term Loan that is not repaid or assumed as part of the Refinancing shall have been repaid in full;
(c) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party Administrative Agent and the Lenders by or any other Subsidiary on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(iid) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiie) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivg) There the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case, at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and (other than any Lender that has requested that it not receive a Note) or any Designated Lender, if applicable, and complying with the terms of Section 2.11.(a)2.12.; and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Guarantors, addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit N-1, (B) an opinion of ▇▇▇▇▇▇▇ & Bird LLP, special Maryland counsel to the Agent Borrower, addressed to the Administrative Agent and the LendersLenders and covering the matters set forth in Exhibit N-2, and (C) an opinion of the Borrower’s general counsel addressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit N-3;
(v) copies of the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonPerson (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary of each Loan Party (or other individual performing similar functions) Loan Party of (Ai) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (Bii) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Asset Certificate calculated as of the Effective DateMarch 31, 2012;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20062012;
(xi) evidence satisfactory to a Closing Certificate substantially in form of Exhibit R, executed on behalf of the Agent that Borrower by an authorized officer of the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminatedBorrower;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Administrative Agent that the Fees, if any, then due and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Credit Notes executed by the Borrower, payable to all Lenders and any Designated Lender, if applicableeach Revolving Credit Lender that has requested a Revolving Credit Note, and complying with the terms of of, Section 2.11.(a); ) and the Swingline a Term Loan Note executed by the Borrower, payable to each Term Loan Lender that has requested a Term Loan Note, and complying with the terms of, Section 2.11.(a);
(iii) the Guaranty executed by the Parent Guarantor and any other Person that would be required under Section 8.13. to become a party to the Guaranty as by each of the Effective DateSubsidiary Guarantors identified in Schedule 1.1.;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Lovells LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel in form and substance reasonably satisfactory to the Agent addressed to the Agent and the LendersAdministrative Agent;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust partnership or other comparable organizational instrument document (if any) of each Loan Party certified as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of such PersonLoan Party (except that, if any such document relating to any Subsidiary Guarantor delivered to Administrative Agent pursuant to the Original Credit Agreement has not been modified or amended and remains in full force and effect, a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of such Subsidiary Guarantor so stating may be delivered in lieu of delivery of a current certified copy of such document);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date not earlier than fifteen (15) days prior to the Effective Date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Conversion and Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity (except that, if any such document delivered to Administrative Agent pursuant to the Original Credit Agreement has not been modified or amended and remains in full force and effect, a certificate so stating may be delivered in lieu of delivery of another copy of such document) and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool Certificate calculated as evidence of the Effective Dateinsurance required under Section 8.5.;
(x) a Compliance Certificate calculated on a pro forma basis certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Borrower’s fiscal quarter ending December 31, 2006Unencumbered Pool under this Agreement;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminateda Compliance Certificate calculated as of September 30, 2012;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiii) evidence satisfactory to the Agent that (A) the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; andpaid and (B) the “Fees” (under and as defined in the Original Credit Agreement) and interest under the Original Credit Agreement accrued through the Effective Date, the principal amounts of the “Loans” (under and as defined in the Original Credit Agreement) outstanding on the Effective Date and all other amounts payable and outstanding under the Original Credit Agreement (including any amounts payable under Section 5.4. thereof as a result of the foregoing principal payments) have been paid in full, which payment may be made from the proceeds of the Loans hereunder or of the “Loan” (under and as defined in the Seven-Year Term Loan Agreement);
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith and reasonable judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened in writing which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any material agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iv) There the Borrower and each other Loan Party shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated provided all information requested by the Loan DocumentsAdministrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (RLJ Lodging Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, hereunder is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes (or replacement Notes, as the case may be) executed by the Borrower, payable to all Lenders and any Designated Lender, if applicable, each applicable Lender and complying with the terms of Section 2.11.(a2.12(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person that would be required under Section 8.13. to become a party an opinion of outside counsel to the Guaranty Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as of the Effective DateAdministrative Agent may request;
(iv) (A) an opinion copies of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Agent addressed to the Agent and the Lenders;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonPerson (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party) or (B) a certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viv) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedPerson;
(viivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Conversion and Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viiivii) (A) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A1) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B2) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyparty or (B) with respect to the items in clause (A)(1) above, if anya certification by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party that such documents have not been amended or otherwise modified since the Revolving Credit Agreement Date;
(viii) a closing certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an authorized officer of the Borrower;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2006;
(xi) evidence satisfactory to the Agent that the Existing Credit Disbursement Instruction Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiix) a pro forma Compliance Certificate prepared as of September 30, 2023;
(xi) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Agent Administrative Agent, the Joint Lead Arrangers and any of the Lenders, including without limitation, the reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and
(xivxii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:;
(i) There the Merger shall be consummated substantially concurrently with the Refinancing on the Effective Date in accordance in all material respects with the Merger Agreement and (ii) any portion of the Existing Term Loan that is not repaid or assumed as part of the Refinancing shall have been repaid in full;
(c) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party Administrative Agent and the Lenders by or any other Subsidiary on behalf of the Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has had or could reasonably be expected to result in a Material Adverse Effect;
(iid) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which is reasonably likely to be adversely determined, and, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iiie) The the Borrower and the other Loan Parties shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(f) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender at least 2 Business Days prior to the Agreement Date in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; and
(ivg) There the Borrower and each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall not have occurred delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or exist any other material disruption of financial or capital markets that could reasonably be expected such Subsidiary, in each case, at least five (5) Business Days prior to materially and adversely affect the transactions contemplated by the Loan DocumentsEffective Date.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, Loans is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the Borrower, payable to all Lenders and each Lender (other than any Designated Lender, if applicable, Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.(a2.8.(a); and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors initially to be required under Section 8.13. to become a party to the Guaranty as of the Effective Datethereto;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, the Parent and the other Guarantors addressed to the Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇▇ & Bird Worcester LLP, and opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel, in each case, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the LendersLenders and covering the matters set forth in Exhibit H;
(v) the certificate or articles of incorporationincorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person Loan Party is required to be so qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person Loan Party authorized to execute and deliver the Loan Documents to which such Person Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices the Notice of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Conversion and Notices of Conversion, Notices of Continuation and Bid Rate Quote RequestsContinuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such PersonLoan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party, if any;
(ix) an Unencumbered Pool a Compliance Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31ended September 30, 20062010;
(x) the Notice of Borrowing from the Borrower for the Loans indicating how the proceeds thereof are to be made available to the Borrower, and if any of the Loans initially are to be LIBOR Loans, the Interest Period therefor;
(xi) evidence satisfactory to the Agent that the Existing Credit Agreement has been paid in full and that all commitments thereunder have been terminated;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) the Fee Letter;
(xiii) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.63.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiv) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(b) In the good faith judgment of the Administrative Agent:
(i) There there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since December 31the date of the information contained in the financial and business projections, 2005budgets, pro forma data and forecasts concerning the Borrower, Borrower and its Subsidiaries delivered to the Parent, any other Loan Party or any other Subsidiary Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iii) The the Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without the occurrence of any default under, conflict with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which, or the failure to make, give or receive which, would which could not reasonably be likely to (1A) have a Material Adverse Effect, or (2B) restrain or enjoin, enjoin impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(iv) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender may request in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(ivv) There there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Appears in 1 contract