Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event 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 Term Notes executed by the Borrower, payable to all Lenders, and complying with the terms of Section 2.9.; (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 Conversion and Notices of Continuation; (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, 2007; (xi) a Transfer Authorizer Designation Form effective as of the Agreement Date; (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 (xiii) 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, 2007, 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 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 Term Bid Rate Notes executed by the Borrower, payable to all LendersLenders and any Designated Lender, if applicable, and complying with the terms of Section 2.9.2.11.(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 Conversion and Swingline Borrowing, requests for Letters of Credit, Notices of ContinuationConversion, 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, 20072006;
(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;
(xiixiii) 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
(xiiixiv) 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, 20072005, 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 closing and effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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: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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.92.11.
(a) and the Swingline Note executed by the Borrower;
(iii) a Guaranty executed by each of the Guarantors initially to be a party thereto, and 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 other than Georgia Square Partnership, Georgia Square Associates, Ltd. and Old Hickory Mall Venture 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, Notices of Conversion and Notices of Continuation;
(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 's fiscal quarter ending December 31June 30, 20072012;
(xix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) 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) evidence that all Liens securing the indebtedness, liabilities or other obligations under the Existing Credit Agreement have been released; provided, that provision shall have been made for certain releases and terminations to be filed and fully effective within thirty (30) days after the Effective Date;
(xv) the duly executed Officer's Certificate; and
(xiiixvi) 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, 2007budgets, 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;
(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.
(c) the Administrative Agent shall have received evidence satisfactory to it that (i) that certain $167,000,000 credit facility dated as of November 30, 2007, by and among Borrower and the Administrative Agent (and other lenders), known as “Starmount”, shall have been (or shall be concurrently with the effectiveness of this Agreement) repaid in full and terminated and (ii) the “Unsecured Indebtedness” covenant set forth in that certain $228,000,000 credit facility dated as of April 22, 2008, by and among Borrower and the Administrative Agent (and other lenders), known as “Westfield”, shall have been amended to allow the maximum ratio of “Unsecured Indebtedness” to “Gross Asset Value” (each as defined therein) to be increased to 0.15 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (CBL & Associates Properties Inc), Credit 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 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 Term Notes executed by the Borrower, payable to all Lenderseach applicable Lender that has requested that it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of Section 2.9.2.12.(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 and Notices of 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 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, 20072019;
(xixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) 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
(xiiixix) 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, 2007budgets, 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 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, Swingline Notes, Term Notes and Term Bid Rate Notes (or, in each case, replacement Notes, as the case may be) executed by the Borrower, payable to all Lenderseach applicable Lender (including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive Notes (other than Swingline Notes)) and complying with the terms of Section 2.9.2.12.(a);
(iii) the Guaranty executed by the Parent an opinion of in-house and any other Person that would be required under Section 8.13. to become a party 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 Existing 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 Revolving Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(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 Existing 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, 2007;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiix) 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 reasonable fees and expenses of counsel to the Administrative Agent, have been paid; and
(xiiixi) 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, 2007budgets, 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;
(e) 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;
(f) the Borrower and each other 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 (5) Business Days prior to the Effective Date; and
(ivg) There all outstanding “Revolving Loans” under and as defined in the Existing Credit Agreement shall not have occurred been repaid in full (which, for the avoidance of doubt, shall be repaid with one 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 Documentsmore Revolving Loans under this Agreement).
Appears in 2 contracts
Sources: Credit Agreement (Realty Income Corp), Credit Agreement (Realty Income Corp)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenderseach applicable Lender that has requested that it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of Section 2.9.2.12.(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 and Notices of 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 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, 20072019;
(xixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) 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
(xiiixix) 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, 2007budgets, 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 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 Term Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenderseach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.92.11.;
(a) and 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 and Notices of 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, 2007;2018;
(xix) 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
(xiiixiv) 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, 2007budgets, 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 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 Term Notes executed by the Borrower, payable to all Lenders, and complying with the terms of Section 2.92.12.; 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 and Notices of Continuation;
(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, 2007;
(xixii) a Transfer Authorizer Designation Form effective as of the Agreement Dateintentionally deleted;
(xiixiii) 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
(xiiixiv) 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, 2007budgets, 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 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 reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.9.2.12.(a);
(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 reasonably 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);
(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, Notices of Conversion and Notices of Continuation;
(viiivii) 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 party;
(viii) a Closing Certificate substantially in form of Exhibit L, if anyexecuted 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, 2007;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiix) a pro forma Compliance Certificate prepared as of September 30, 2022;
(xi) 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 reasonable fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) the Escrow Agreement, executed by the Escrow Agent, each the Borrower, each of the Lenders, and the Administrative Agent; 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 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, 2007budgets, 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;
(e) 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
(ivf) 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 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 Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.9.2.8.(a);
(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 Conversion and Notices of 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 (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, 20072013;
(xix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixi) 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, 2007budgets, 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 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 Term Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenderseach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.92.11.
(a) and 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 and Notices of 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, 20072018;
(xix) 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;
(xiiixiv) 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, 2007budgets, 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 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 Term Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenderseach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.92.11.
(a) and 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 and Notices of 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, 20072018;
(xix) 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;
(xiiixiv) 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, 2007budgets, 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 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender (other than any Lender that has requested that it not receive any Note) and complying with the terms of Section 2.9.2.11.(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;[Intentionally deleted.]
(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 Revolving Borrowing, Notices of Term Loan Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of 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 a Notice of Term Loan Borrowing and Notice of Revolving Borrowing executed by the Effective DateBorrower;
(x) a Compliance Certificate calculated as of the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31ended September 30, 20072014;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(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) if requested 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;
(xiv) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Agreements shall have been paid in full concurrently with the first Credit Event hereunder; and
(xiiixv) 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 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, 2007budgets, 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 (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;
(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 effectiveness of this Agreement and the making of the Lenders to effect or permit Loans on the occurrence of the first Credit Event Effective Date 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 Term Notes executed by the Borrower, a Note payable to all Lenders, each Lender requesting a Note prior to the Effective Date pursuant to and complying with the terms of Section 2.9.2.13(a);
(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 LLPPC, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative 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 organization or 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 the Notice of Borrowing, Notices of Conversion and Notices of 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 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 DateParent Guarantor’s fiscal quarter ended March 31, 2017;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) 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;
(xii) an amendment to Revolving Credit Agreement, executed by the requisite parties, which amendment shall, inter alia, permit the term loan facility evidenced hereby and effect changes to the Revolving Credit Agreement which conform with the applicable terms of this Agreement, all in form and substance reasonably satisfactory to the Administrative Agent; and
(xiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) no Default or Event of Default shall exist;
(c) 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;
(d) the representations and warranties made or deemed made by the Borrower and each other Loan Party in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1 shall be true and correct; and
(be) In the good faith judgment of the 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 31, 2007, 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 approvalsa timely Notice of Borrowing. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in clauses (b), consents (d) and waivers(e) (both as of the date of the giving of notice relating to such Credit Event and, and shall have made or given all necessary filings and notices unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as shall be required to consummate of the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without date of the occurrence of any default undersuch Credit Event). In addition, 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 shall be deemed to have represented to the Administrative Agent and the Lenders at the time such Loan Party is made that all conditions to fulfill its obligations under the making of such Loan Documents to which it is a party; and
(iv) There shall not contained in this Article VI 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 satisfied.
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 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 Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.9.2.8.(a);
(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 G;
(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 that Notice of Borrowing, Borrowing and Notices of Conversion and Notices of 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 Parent's fiscal quarter ending December 31June 30, 20072012;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiix) 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;
(xiiixi) 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;
(xii) 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, 2007budgets, 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 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.9.(a);
(iii) the Guaranty executed by each of the Parent and any each Material Subsidiary (other Person that would be required under Section 8.13. to become than an Excluded Subsidiary or a party to the Guaranty Foreign Subsidiary) existing 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 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 (x) as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the 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 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;
(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 Conversion and Conversion, Notices of ContinuationContinuation and to request 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 (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 opinion of counsel to the Loan Parties, if anyaddressed to the Administrative Agent and the Lenders and covering the matters set forth in Exhibit H;
(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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to the Agent that the Fees, if any, Fees 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;
(x) a Compliance Certificate calculated as of the Effective Date (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) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Unencumbered Borrowing Base Property and a pro forma operating budget for such Property with respect to the current fiscal year;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(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) an Appraisal for each Property addressed to the Administrative Agent and otherwise in form and substance reasonably acceptable to the Administrative Agent; and
(xiiixv) 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 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, 2007budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and its 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 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;; and
(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, 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
. The provisions of clauses (iv) There through (viii) of the immediately preceding subsection (a) shall not have occurred or exist any other material disruption of financial or capital markets apply to Accommodation Subsidiaries that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsare not also Material Subsidiaries.
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 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.9.2.8.(a);
(iii) the Guaranty executed by each of the Parent and any each Material Subsidiary (other Person that would be required under Section 8.13. to become than an Excluded Subsidiary or a party to the Guaranty Foreign Subsidiary) existing 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 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 (x) as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the 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 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;
(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 the Notice of Borrowing, Notices of Conversion and Notices of Continuation;
(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 opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), if anyaddressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to the Agent that the Fees, if any, Fees 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;
(x) a Compliance Certificate calculated as of the Effective Date (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) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Unencumbered Property and a pro forma operating budget for such Property with respect to the current fiscal year;
(xii) 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;
(xiii) each of the items required pursuant to Section 13.20.(b) with respect to the Closing Date Mortgage and evidence that the real property subject to the Closing Date Mortgage is not in a special flood hazard area;
(xiv) certified copies of enforceable amendments to the Revolving Facility and the Existing Term Loan effected on the Effective Date; and
(xiiixv) 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 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, 2007budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and its 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;
(iic) 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 (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 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 (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, 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
(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. The provisions of clauses (iv) There through (viii) of the immediately preceding subsection (a) shall not have occurred or exist any other material disruption of financial or capital markets apply to Accommodation Subsidiaries that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsare not also Material Subsidiaries.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender requesting a Revolving Note and complying with the terms applicable provisions of Section 2.92.10., and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by the Parent and any other Person each Subsidiary that would be required under Section 8.13. to become a party to the Guaranty owns or leases an Initial Unencumbered Pool Property, if any, 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 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;
(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 Conversion Swingline Borrowings, Notices of Continuation and Notices of ContinuationConversion 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 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 pro forma basis for as of the Borrower’s fiscal quarter ending Effective Date (using unaudited figures from December 31, 20072012 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) a Transfer Authorizer Designation Form effective Borrowing Base Certificate calculated as of the Agreement Effective Date;
(xii) intentionally deleted;
(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 that are not continuing 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 and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paidterminate their commitments thereunder; and
(xiiixv) 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, 2007budgets, 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 to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenderseach Lender, (B) Bid Rate Notes executed by Borrower, each in the full amount of the potential Bid Rate Borrowing and one payable to each Lender, and (C) a Swingline Note executed by Borrower and payable to the Swingline Lender, each complying with the terms of Section 2.9.2.11;
(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 Conversion and Conversion, Notices of ContinuationContinuation and requests 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, 20072005;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to the Administrative 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
(xiiixiv) 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, 2007budgets, 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 hereunder, whether as the making of a Loan, 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 Term Notes executed to the extent requested by the Lenders, a Note made by the Borrower, payable to all Lenders, each applicable Lender and complying with the terms of Section 2.9.2.8(a);
(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; DB1/ 113000430.10
(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 Conversion and Notices of 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 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 ended December 31, 20072019;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
evidence that (xiix) 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 the Borrower in Delaware indicating that there are no liens of record other than Permitted Liens; and
(xiii) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; anda completed Borrower Administrative Questionnaire;
(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, 2007, 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 partythis Agreement; 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.DB1/ 113000430.10
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, and complying with the terms of Section 2.9.each applicable Lender;
(iii) the Third 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, requests for Letters of Credit, Notices of Conversion and Notices of 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 31September 30, 20072016;
(xix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) 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
(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 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, 2007budgets, 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 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 Term Notes executed by the Borrower, Borrower payable to all Lenders, the Lenders and complying with the terms of Section 2.92.11.
(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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, corporate counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent Loan Parties, and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLPGarneau, LLC, Hawaii counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders;
(viv) 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;
(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 qualifiedqualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(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 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 and Notices of Continuation;
(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 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, 2007;
(xiviii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiiix) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date;
(x) the Fee Letter;
(xi) 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) 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 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 Borrower, any Loan Party or any other Subsidiary actually maintains with respect to the Property and improvements on the Property;
(xiii) with respect to the Property
(a) an environmental questionnaire and environmental site assessment with respect to the presence, if any, of Hazardous Materials on the Property;
(b) copies of all agreements which are material to the occupancy and operation of the Property;
(c) copies of all building permits and other permits required in connection with the development of the Property including, without limitation, any documentation relating to the entitlement of Kapalua Mauka;
(d) copies of any initial study, negative declaration, mitigated negative declaration, environmental impact report, notice of determination or notice of exemption prepared, adopted, certified or filed by or with any Governmental Authority in connection with the Property;
(e) an Appraisal of the Property;
(f) endorsements to the Title Insurance Policy as Administrative Agent may request insuring the priority of the Lien of the Mortgage and such other matters as Administrative Agent may require;
(g) a duly executed Memorandum of Amended and Restated Credit Agreement Amending Mortgage amending the Mortgage; and
(xiiixiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; andrequest including without limitation, subordination agreements, estoppels, and other agreements with third parties relating to use, occupancy, operation, maintenance, enjoyment or ownership of the Property.
(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, 2007budgets, 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 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 make Loans 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 Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender that has requested that it receive a Note and complying with the terms of Section 2.9.2.8(a);
(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 legal opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors addressed to the Agent Loan Parties, and the Lenders and (B) an opinion of ▇▇▇▇▇▇▇ & Bird LLPP.C., special New York counsel to the Agent Borrower and the other Loan Parties, each addressed to the Administrative Agent and the LendersLenders and addressing such matters as the Administrative Agent may 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 Conversion and Notices of Continuation;
(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 March 31, 20072012;
(xi) a Transfer Authorizer Designation Form Borrower Authorized Persons Certificate effective as of the Agreement Date;
(xii) the Disbursement Letter;
(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 without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and;
(xiiixiv) 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, 2007budgets, 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: Term Loan 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 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 Term Notes executed by the Borrower, payable to all Lenders, each requesting Lender and complying with the terms of Section 2.9.2.12(a);
(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 ▇H▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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, requests for Letters of Credit, Notices of Conversion and Notices of 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 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 ended March 31, 20072024;
(xi) evidence that all Indebtedness of the Borrower and its Subsidiaries under or arising in connection with the Prior Credit 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) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixiii) 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 3.6.3.5, 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
(xiiixvii) 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, 2023, 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, 2007, 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 obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the BorrowerBorrowers, payable to all Lenders, each Lender (if requested by such Lender) and complying with the terms applicable provisions of Section 2.9.2.10;
(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 each Pledgor existing as of the Agreement Date;
(Av) an opinion 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 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 Continuation, Notices of Conversion and Notices to request the issuance of ContinuationLetters 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;
(ixx) an Unencumbered Pool Evidence that the Fees then due and payable under Section 3.6, and any other Fees, expenses and reimbursable amounts due and payable to the Agent, the Titled Agents and the Lenders on or prior to the Effective Date have been paid;
(xi) A Compliance Certificate calculated as of September 30, 2011 (giving pro forma effect to the financing contemplated by this Agreement and the Term Loan 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, 2007Lenders may reasonably request;
(xixv) 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 Agent to be entered into, filed, registered or recorded or taken, in order to create in favor of the Agent, for the benefit of the Lenders, a Transfer Authorizer Designation Form effective perfected first-priority Lien in the Collateral as of the Agreement Effective Date;
(xii) evidence satisfactory to the Agent that the Fees, if anyshall have been entered into, then due and payable under Section 3.6.filed, together with all other feesregistered, expenses and reimbursement amounts due and payable recorded, taken or shall have been delivered to the Agent and any be in proper form for filing, registration or recordation, as appropriate;
(xvi) Evidence that the Intercreditor Agreement shall have been duly executed and delivered by each party thereto, and shall be in full force and effect;
(xvii) Evidence that the Term Loan Agreement and the other Loan Documents (as defined in the Term Loan Agreement) to be executed and delivered as a condition to the effectiveness of the LendersTerm Loan Agreement, including without limitation, the fees and expenses of counsel to the Agent, shall have been paid; andduly executed and delivered by each party thereto, and shall be in full force and effect;
(xiiixviii) 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, 2007budgets, 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; and
(v) The Borrowers 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 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 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 Term Bid Rate Notes executed by the Borrower, payable to all LendersLenders (other than any Lender that has requested that it not receive a Note) and any Designated Lender, if applicable, and complying with the terms of Section 2.92.12.
(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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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 Guarantors, and addressed to the Agent Administrative Agent, the Issuing Bank and the LendersLenders and covering the matters set forth in Exhibit N;
(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;
(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 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 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 Conversion and Swingline Borrowing, requests for Letters of Credit, Notices of ContinuationConversion, 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 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 Transfer Authorizer Designation Form effective as of the Effective Agreement Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20072011;
(xi) a Transfer Authorizer Designation Form effective as of evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Credit Agreement Dateshall have been paid in full and all commitments to make loans and/or provide other financial accommodations thereunder have terminated;
(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 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) 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, 2007budgets, 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, 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;
(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 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 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 Term Notes executed by the Borrower, payable to all Lenderseach applicable Lender that has requested that it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of Section 2.9.2.12.(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 and Notices of 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 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, 20072019;
(xixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) 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
(xiiixix) 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, 2007budgets, 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 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 Term Notes executed by the Borrower, payable to all the Lenders, and complying with the terms of Section 2.9.this Agreement;
(iii) the Guaranty and the Hazardous Materials Indemnity Agreement executed by the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as Guarantor, together with all of the Effective Dateother Loan Documents executed by Borrower;
(iv) the Security Documents and other Loan Documents, executed by Borrower and the other parties thereto;
(Av) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerBorrower and Guarantor, the Parent and the other Guarantors addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLPcovering due execution, counsel to the Agent addressed to the Agent authority, no conflict, enforceability, local matters and the Lendersother matters, all as required by Administrative Agent;
(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 Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, 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 Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, issued as of a recent date by the Secretary of State of the state of formation of each such Person 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) of each Loan Party Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, 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 Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent 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 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 Date;
(x) a Borrowing Base Certificate calculated as of December 31, 2014 (but assuming that the total amount of the Loans outstanding for purposes of calculating Testing Debt Yield and Testing LTV therein will be the amount of the Loans disbursed to Borrower on the Effective Date);
(xi) a Compliance Certificate calculated on a pro forma basis for the BorrowerGuarantor’s fiscal quarter ending December 31, 20072014;
(xixii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixiii) UCC, tax, judgment and lien search reports with respect to Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, and each Borrowing Base Property, in all necessary or appropriate jurisdictions, indicating that there are no Liens of record on such Property or related to such Persons 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 to be used and each Tenant Lease entered into as of the Agreement Date with respect to such Property;
(xvi) the Fee Letter;
(xvii) 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 limitationincluding, 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 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 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 the Lenders, and the Specified Derivatives Providers, is each named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that Borrower, Guarantor or any other Affiliate of Borrower actually maintains with respect to any Property and improvements on such Property;
(xix) Subordination, Non-Disturbance and Attornment Agreements, and estoppel certain from such tenants as may be required by Administrative Agent, in form and substance reasonably acceptable to Administrative Agent;
(xx) all information requested by Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act;
(xxi) payment of mortgage and recording taxes, to the extent applicable, and delivery of such evidence and memoranda thereof as Administrative Agent shall reasonably require;
(xxii) delivery of all other space leases and subleases, management agreements, leasing agreements, parking agreements, licenses and permits, maintenance and service agreements, labor agreements, equipment leases, capital and operating budgets, copies of prior tax bills, flood zone certifications and other similar due diligence information and materials as Administrative Agent shall reasonably require;
(xxiii) a zoning report (PZR or similar), property condition report, Phase I and, if applicable, Phase II environmental audit as Administrative Agent shall reasonably require; and
(xiiixxiv) 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 31, 2007, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that which has had or could reasonably be expected to result in a Material Adverse EffectEffect (as reasonably determined by Administrative Agent) since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning Borrower and Guarantor delivered to Administrative Agent and the Lenders prior to the Agreement Date;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened against any Borrower or Guarantor, the adverse determination of which could reasonably be expected to (A) result in would have 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 partyas reasonably determined by Administrative Agent);
(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 of: (A) any Applicable Law Law; or (B) any agreement, document or instrument to which any Loan Party Borrower or Guarantor 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
Sources: Revolving Loan Agreement (RREEF Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder Loan 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 Term Notes executed by the Borrower, Borrower payable to all Lenders, each Lender (other than any Lender that has requested not to receive a Note) and complying with the terms applicable provisions of Section 2.9.2.10 (which Notes shall be promptly forwarded by the Agent 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 the Agent may reasonably require;
(v) The Governing Documents of the certificate Borrower, each Guarantor and each general partner or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust managing member (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;; A/75663178.5
(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 or 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 Conversion Continuation and Notices of ContinuationConversion;
(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) an Unencumbered Pool Certificate calculated as of The Fees then due and payable under Section 3.6, and any other Fees and invoiced expenses payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a A pro forma Compliance Certificate calculated on a pro forma basis for as of June 30, 2013, after giving effect to the Borrower’s fiscal quarter ending December 31, 2007Loan;
(xi) A certificate signed by a Transfer Authorizer Designation Form effective as Responsible Officer of the Agreement DateBorrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) evidence The documentation and other information requested by any Lender that is required by regulatory authorities under the applicable “know your customer” rules and regulations;
(xiii) A copy of the Revolving Credit Agreement in which the covenants thereunder are conformed to the covenants set forth herein, in form and substance reasonably satisfactory to the Agent and the Borrower;
(xiv) Evidence reasonably satisfactory to the Agent that all guaranties provided by the Fees, if any, then Guarantors listed on Schedule 12.20 have been released under the Borrower’s Senior Notes due 2018 and payable under Section 3.6., together with all other fees, expenses and reimbursement amounts due and payable to the Agent and any existing Unsecured Debt of the Lenders, including without limitation, Borrower and the fees and expenses other Obligors in excess of counsel to the Agent, have been paid$35,000,000; and
(xiiixv) 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. A/75663178.5
(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 31June 30, 2007, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary 2013 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 (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder is Loan are 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 Term Notes executed by the Borrower, Borrower payable to all Lenders, each Lender (other than any Lender that has requested not to receive a Note) and complying with the terms applicable provisions of Section 2.9.2.10 (which Notes shall be promptly forwarded by the Agent 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 the Agent may reasonably require;
(v) The Governing Documents of the certificate Borrower, each Guarantor and each general partner or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust managing member (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 or 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 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 Conversion Continuation and Notices of ContinuationConversion;
(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) an Unencumbered Pool Certificate calculated as of The Fees then due and payable under Section 3.6, and any other Fees and invoiced expenses payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a A pro forma Compliance Certificate calculated on a pro forma basis for as of September 30, 2017, after giving effect to the Borrower’s fiscal quarter ending December 31, 2007Loans;
(xi) A certificate signed by a Transfer Authorizer Designation Form effective as Responsible Officer of the Agreement DateBorrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) evidence satisfactory to The documentation and other information requested by any Lender that is required by regulatory authorities under the Agent that the Fees, if any, then due applicable “know your customer” rules 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 paidregulations; and
(xiii) 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 31September 30, 2007, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary 2017 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;; and
(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 (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event making of a Loan 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender which has requested a Note and complying with the terms applicable provisions of Section 2.9.2.8;
(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 DateParent;
(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;
(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 Conversion Continuation and Notices of ContinuationConversion;
(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 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 and the Lenders, 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;
(x) a Compliance Certificate calculated on a as of the Effective Date (giving pro forma basis for effect to the Borrower’s fiscal quarter ending December 31, 2007financing evidenced by this Agreement and the use of the proceeds of the Loans to be funded on the Agreement Date);
(xi) a Transfer Authorizer Designation Form effective as disbursement statement setting forth in reasonable detail the application of the Agreement initial Loans being funded on the Effective Date;
(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
(xiii) 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, 2007budgets, 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 to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to all Lenders, each Lender and complying with the terms applicable provisions of Section 2.9.2.11, 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 Conversion Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of ContinuationConversion 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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to the Agent that the Fees, if any, Fees then due and payable under Section 3.6., together 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 June 30, 2012 (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 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 other feescommitments thereunder have been irrevocably terminated;
(xiii) 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, expenses in form and reimbursement amounts due and payable substance reasonably satisfactory to the Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Agent, have been paidBorrower; and
(xiiixiv) 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, 2007, 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 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 heretohereto (which shall include, without limitation, each of the “Lenders” under the Existing Term Loan Agreements);
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.92.12.
(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[reserved];
(iv) (A) 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;
(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 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);
(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 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;
(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 and Notices of 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 Asset Certificate calculated as of the Effective DateDecember 31, 2017;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 20072017;
(xi) a Transfer Authorizer Designation Form effective as Closing Certificate substantially in form of Exhibit T, executed on behalf of the Agreement DateBorrower by an authorized officer of the Borrower;
(xii) [reserved];
(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 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
(xiiixiv) copies of the notice sent to all of the holders of the notes outstanding under each of the Existing Note Purchase Agreements pursuant to Section 9.7(b) of each Existing Note Purchase Agreement directing the release of SCA as a guarantor under each of the Existing Note Purchase Agreements;
(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, 2007budgets, 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;
(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; and
(ivf) 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 the occurrence of the first Credit Event hereunder 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 Term Notes of each Class executed by the Borrower, payable to all Lenders, each Lender of such Class (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.9.2.11(a) and a replacement Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty each Material Subsidiary existing 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 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 or Assistant Secretary (or other individual performing similar functions) of State such Loan Party as being a true, correct and complete copy thereof as of the state of formation of such PersonAgreement 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 qualifiedLoan Party;
(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 Conversion and Conversion, Notices of Continuation, Notices of Swingline Borrowing, and to request 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 (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 opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), if anyaddressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) 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 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;
(x) a Compliance Certificate calculated as of the Effective Date (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) [intentionally omitted];
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) evidence of repayment in full of the Existing Term 2 Loan; and
(xiiixiv) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and. The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to Accommodation Subsidiaries that are not also Material Subsidiaries.
(b) In the good faith judgment of the 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, 2007budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and its 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;
(iic) 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 (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 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 (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, 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 provided to the Administrative Agent and the Lenders the 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 Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(f) Each Loan DocumentsParty 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 (5) Business Days prior to the Effective Date.
Appears in 1 contract
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 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 Term Notes (except for any Lender who has requested not to receive a promissory note), executed by the Borrower, payable to all Lenders, each Lender and complying with the terms applicable provisions of Section 2.9.2.11;
(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 Conversion Continuation and Notices of ContinuationConversion 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 (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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) 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
(xiii) 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, 2007, 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 effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder this Agreement 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms applicable provisions of Section 2.92.8.;
(iii) the Parent Guaranty reaffirmation executed by each Guarantor substantially in the Parent and any other Person that would be required under Section 8.13. to become a party to the Guaranty as form of the Effective DateExhibit B;
(iv) prepayment of the Loans funded under the Original Credit Agreement by an amount at least equal to $96,000,000, such amount to be in immediately available funds;
(Av) an opinion one or more 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, collectively addressing the matters set forth in Exhibit F;
(vvi) 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;
(vivii) 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, in case of the Borrower, and certificates of qualification to transact business or other comparable certificates issued by each the Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualifiedthe State of California;
(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 the officers of the Borrower Representative then authorized to deliver Notices of Borrowing, Notices of Conversion Continuation and Notices of ContinuationConversion;
(viiiix) 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 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 Security Deed executed by the Borrower granting to the Agent for the Borrower’s fiscal quarter ending December 31, 2007benefit of the Lenders a first-priority Lien in the Mortgaged Property;
(xi) a Transfer Authorizer Designation Form effective Assignments of Leases and Rents executed by the Borrower granting to the Agent for the benefit of the Lenders first-priority Liens in all of the rents from, and leases of, the Mortgaged Property owned by the Borrower as of the Agreement Datedate of such grant;
(xii) evidence satisfactory an environmental indemnity agreement executed by the Borrower in favor of the Agent and the Lenders;
(xiii) if requested by the Agent, collateral assignments of all Material Contracts, Entitlements, and any other rights or benefits of or appurtenant to the Mortgaged Property as of the date of such assignment, relating to the development, use, occupancy, operation, maintenance, enjoyment or ownership of any of such Mortgaged Property, together with any required consents to the collateral assignment thereof;
(xiv) an ALTA 1992 Form mortgagee’s Policy of Title Insurance (with deletion of the creditor’s rights exclusion and deletion of the mandatory arbitration provision) or other form acceptable to the Agent in favor of the Agent for the benefit of the Lenders with respect to the Mortgaged Property, including endorsements with respect to such items of coverage as the Agent may request (and which endorsements are available in the State of California), in a coverage amount equal to no less than the outstanding principal balance of the Loans, issued by a title insurance company acceptable to the Agent and with coinsurance or reinsurance (with direct access agreements) with title insurance companies acceptable to the Agent, showing the fee simple title to the land and improvements comprising such portion of the Mortgaged Property as vested in the Borrower, and insuring that the FeesLiens granted by such Security Deeds are valid first priority Liens against the applicable portion of the Mortgaged Property, subject only to such restrictions, encumbrances, easements and reservations as are acceptable to the Agent;
(xv) a survey of the Mortgaged Property certified by a surveyor licensed in the jurisdiction where the Mortgaged Property is located to have been prepared in accordance with the then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, and if anynot adequately covered by the survey certification, evidence that the Mortgaged Property is not located in a Special Flood Hazard Area as defined by the Federal Insurance Administration;
(xvi) current updates of the UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions and under all legal and appropriate trade names indicating that there are no Liens of record on the Mortgaged Property, the Bosa Contract or any of the other assets of the Borrower other than Permitted Liens;
(xvii) an opinion of counsel admitted to practice law in the jurisdiction in which the Mortgaged Property is located and acceptable to the Agent, addressed to the Agent and each Lender covering such legal matters relating to the transactions contemplated hereby as the Agent may reasonably request, including without limitation, the enforceability of the Security Deeds;
(xviii) evidence that the insurance required for the Mortgaged Property owned by the Borrower under the Loan Documents is then in effect;
(xix) such other due diligence materials, instruments, documents, agreements, financing statements, certificates, opinions and other Security Documents as the Agent may reasonably request;
(xx) 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 limitation, the fees and expenses of counsel Lenders on or prior to the Agent, have been paid; andEffective Date;
(xiiixxi) 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, 2007budgets, pro forma data and forecasts concerning the Borrower, Borrower or the Parent, any other Loan Party or any other Subsidiary Guarantors delivered to the Agent and the Lenders prior to the Restatement 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 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 (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, 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.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (but excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.9.2.10.(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 and Notices of 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 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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixi) 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) 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, 20072012, 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 effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder is Loan are 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 Term Notes executed by the Borrower, Borrower payable to all Lenders, each Lender (other than any Lender that has requested not to receive a Note) and complying with the terms applicable provisions of Section 2.9.2.10 (which Notes shall be promptly forwarded by the Agent 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 the Agent may reasonably require;
(v) The Governing Documents of the certificate Borrower, each Guarantor and each general partner or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust managing member (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 or 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 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 Conversion Continuation and Notices of ContinuationConversion;
(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) an Unencumbered Pool Certificate calculated as of The Fees then due and payable under Section 3.6, and any other Fees and invoiced expenses payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a A pro forma Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December as of March 31, 20072015, after giving effect to the Loans;
(xi) A certificate signed by a Transfer Authorizer Designation Form effective as Responsible Officer of the Agreement DateBorrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof;
(xii) evidence satisfactory to The documentation and other information requested by any Lender that is required by regulatory authorities under the Agent that the Fees, if any, then due applicable “know your customer” rules 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 paidregulations; and
(xiii) 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 March 31, 2007, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary 2015 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;; and
(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 (Columbia Property Trust, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.11. 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 and Notices of Continuation;
(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, 20072004;
(xi) a Transfer Authorizer Designation Form effective evidence of such insurance as of the Agreement Dateis required pursuant to Section 8.5.;
(xii) with respect to each Property identified on Schedule 4.1., each of the items 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
(xiiixv) 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, 2007budgets, 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 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, the Account Control Agreement and the Securities Account Control Agreement executed in each case by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.12(a);
(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 BorrowerBorrower 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 Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Conversion and Notices of 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 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 fiscal quarter ending December 31June 30, 20072012;
(xi) a Transfer Authorizer Designation Form effective as reserved;
(xii) UCC, tax, judgment and lien search reports with respect to the Borrower;
(xiii) copies of all Material Contracts in existence on the Agreement Date;
(xiixiv) reserved;
(xv) the Fee Letter;
(xvi) 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;
(xvii) Delivery of all documents constituting the Collateral as may be required by Administrative Agent, including, endorsements to Administrative Agent of the Ahold Bensalem Participation and all B Notes and Assignments of the Mortgage Loan Documents with respect to the Ahold Bensalem Participation and all B Notes;
(xviii) Any and all consents, approvals and waivers applicable to the Collateral shall have been obtained;
(xix) Administrative Agent shall have received evidence satisfactory to the Administrative Agent that, the payor with respect to any and all Income on the Junior Interests has been instructed pursuant to Irrevocable Instructions to deliver such amounts to the Collection Account, which instructions may not be modified without the prior written consent of the Administrative Agent, and the Borrower shall have delivered all notices and instructions and obtained all certifications, acknowledgements, agreements and registrations required by Administrative Agent to perfect the Lenders’ security interest in all Junior Interests.
(xx) Administrative Agent shall have received evidence satisfactory to the Administrative Agent that, the NationsLink I/O Bond shall have been deposited into the Securities Account and, which deposit may not be modified without the prior written consent of the Administrative Agent, and the Borrower shall have delivered all notices and instructions and obtained all certifications, acknowledgements, agreements and registrations required by Administrative Agent to perfect the Lenders’ security interest in the NationsLink I/O Bond; and
(xiiixxi) 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, 2007budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary Guarantor 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 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 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 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 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) no event shall have occurred that would constitute a Default or Event of Default under this Agreement. Borrower shall not have notified Administrative Agent of the occurrence of any event described in Sections 6.1(b) as of the date of the occurrence of the first Credit Event hereunder.
Appears in 1 contract
Sources: Credit Agreement (CapLease, 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 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 Term Notes the Note executed by the Borrower, payable to all Lenders, and complying with the terms of Section 2.9.;
(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 Conversion and Notices of ContinuationAuthorized 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;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form effective Borrowing Base Report calculated as of the Agreement Effective Date, based upon the initial Borrowing Base Properties;
(xii) with 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
(xiiixv) 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, 2007budgets, 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 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 Term Notes executed by the Borrower, payable to all Lenderseach applicable Lender that has requested that it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of Section 2.9.2.12.(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 and Notices of 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 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, 20072019;
(xixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) 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
(xiiixix) 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, 2007budgets, 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 Agent and the Lenders to effect or permit make the occurrence of the first Credit Event 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section Sections 2.9.
(a) and (b);
(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 Conversion and Notices of Continuation;
(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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to a Compliance Certificate based on the Agent that Parent's fiscal quarter ending March 31, 2003 detailing the Feespro forma effect of (A) the acquisition of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, if any▇▇▇▇▇▇▇▇▇▇ Mall, then due The Gallery I and payable under Section 3.6., together with all other fees, expenses Exton Mall and reimbursement amounts due and payable to the Agent and any funding of the Lenders, including without limitation, entire Term Commitment and (B) the fees acquisition of all ▇▇▇▇▇ Properties and expenses the funding of counsel to the Agent, have been paid; andentire Commitments;
(xiii) 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, 2007budgets, 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 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 Term Bid Rate Notes executed by the Borrower, payable to all Lenderseach 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 2.92.12.
(a) and the Swingline 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 Conversion and Swingline Borrowing, requests for Letters of Credit, Notices of ContinuationConversion, 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, 20072021;
(xix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) [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
(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 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, 2007budgets, 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 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.9.(a);
(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 Conversion and Notices of Continuation;
(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, 20072013;
(xix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) 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
(xiiixvi) 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, 2007budgets, 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 Advance 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.92.8.;
(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 of ▇▇▇▇▇▇ & Bird LLP, counsel covering 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 each Loan Party 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 June 18, 2004 (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 Conversion and Notices of Continuation;
; (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 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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(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
(xiii) 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, 2007, 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: Unsecured Credit 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 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 Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (other than any Lender that has requested that it not receive a Revolving Note) and complying with the terms of Section 2.92.10.
(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 and Notices of 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 BorrowerParent’s fiscal quarter ending December 31, 20072011;
(xix) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixi) 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) 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, 2007budgets, 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 Loans on the first Credit Event hereunder 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 Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to all Lenders, each Lender (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.9.2.10.(a);
(iii) the Guaranty executed by each of the Parent and any other Person that would Guarantors, if any, initially required to be required under Section 8.13. to become a party thereto pursuant to the Guaranty as of the Effective DateSection 7.13.;
(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 Person;Loan Party; LEGAL02/3698915037492873v32
(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 Conversion and Notices of 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 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, 20072014;
(xix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) the Notice of Borrowing from the Borrower requesting the Loans;
(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
(xiiixiv) 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 31, 2007, 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;
(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 LEGAL02/3698915037492873v32
(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, 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; and
(f) the Borrower and each other Loan Party shall have provided all information requested in writing by the Administrative Agent and each Lender at least five Business Days prior to the Effective Date 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
Sources: Term Loan Agreement (Senior Housing Properties Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, and complying with the terms of Section 2.9.each applicable Lender that has requested to receive Notes;
(iii) the Guaranty executed by an opinion of counsel to the Parent and any other Person that would be required under Section 8.13. to become a party general partner of the Borrower, addressed to the Guaranty as of Administrative Agent and the Effective DateLenders in form and substance satisfactory to Administrative Agent;
(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, 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 PersonLoan 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 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;
(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, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(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, if any;
(ix) an Unencumbered Pool Certificate calculated as of the Effective Date;
(xviii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31June 30, 20072021;
(xiix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiix) the Fee Letter;
(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 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 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 Effective Date and as requested by the Administrative Agent or any Lender; 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 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, 2007budgets, 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 shall not have occurred or exist any at least five (5) Business Days prior to the Effective 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 DocumentsAdministrative 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (Ps Business Parks, Inc./Md)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit make the occurrence first advance of the first Credit Event hereunder 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 Term Notes A Note executed by the Borrower, payable to all Lenderseach Lender that has requested a Note, and complying with the terms of of, Section 2.9.2.11.(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 Revolving Credit Agreement or 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 Conversion and Notices of 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 (except that, if any such document delivered to Administrative Agent pursuant to the Revolving Credit Agreement or 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 evidence of the insurance required under Section 8.5.;
(x) a certificate of the Borrower and the Parent Guarantor certifying that the Properties identified in Schedule 4.1 satisfy the requirements for inclusion in the Unencumbered Pool under this Agreement;
(xi) a Compliance Certificate calculated as of June 30, 2013 on a pro forma basis after giving effect to the transactions contemplated by this Agreement on the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xixii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixiii) 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;
(xiiixiv) 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, 2007budgets, 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 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 Term Notes executed by the BorrowerBorrowers, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.12(a);
(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, requests for Letters of Credit, Notices of Conversion and Notices of 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 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, 20072012;
(xi) with respect to each Property identified on Schedule 4.1, each of the items referred to in Section 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;
(xiixiii) UCC, tax, judgment and lien search reports with respect to the 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 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;
(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
(xiiixix) 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, 2007budgets, 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 W▇▇▇▇ Fargo Repurchase Line of Credit to an aggregate amount not to exceed $12,000,000.
Appears in 1 contract
Sources: Credit Agreement (American Realty Capital Properties, Inc.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 hereto;
(ii) to the extent requested by the Lenders, a Revolving Notes and Note and/or a Term Notes executed Note made by the Borrower, payable to all Lenders, each applicable Lender and complying with the terms of Section 2.9.2.10(a);
(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, requests for Letters of Credit, Notices of Conversion and Notices of 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 31September 30, 20072018;
(xix) a Transfer Authorizer Designation Form completed Disbursement and Rate Management Agreement effective as of the Agreement Date;
(xi) evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under each of the Existing Credit Agreements shall have been paid in full and any Liens securing such indebtedness, liabilities or other obligations have been released;
(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;
(xv) 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
(xiiixvi) 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, 2007, 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 ;
(1i) 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
Sources: Revolving Credit and Term Loan Agreement (Spirit Realty, L.P.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder hereunder, whether as the making of an Advance 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.10, and the Swingline Note executed by the Borrower, payable to Swingline Lender;
(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 of ▇▇▇▇▇▇ & Bird LLP, counsel covering 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 each Loan Party 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 January 24, 2006 (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, Notices of Conversion and Notices of Continuation;
(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;; exhibit10175a.htm
(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, 20072006;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiix) evidence satisfactory to the Agent that the Fees, if any, Fees 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 Agent, Lenders have been paid; and
(xiiixi) 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, 2007budgets, 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 Credit 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 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 Term Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenderseach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.9.;2.11.(a) and 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 and Notices of 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, 2007;2018;
(xix) 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
(xiiixiv) 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, 2007budgets, 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 effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder this Agreement 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 Term Notes executed by the Borrower, a Note payable to all Lenderseach Lender not party to the Third Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (excluding, and in each case, any Lender that has requested that it not receive a Note), in each case complying with the terms of Section 2.9.2.13(a);
(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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇Polsinelli PC, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, 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 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 organization or 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 Conversion and Notices of 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 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 DateParent Guarantor’s fiscal quarter ended December 31, 2014;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) 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;
(xii) evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Third Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (B) each Departing Lender shall have received payment in full of all of the “Obligations” under the Third Amended Credit Agreement (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as defined in the Third Amended Credit Agreement); and
(xiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) No Default or Event of Default shall exist;
(c) 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
(bd) In The representations and warranties made or deemed made by 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, 2007, concerning the Borrower, the Parent, any Borrower and each 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 this Agreement and 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 Documents delivered pursuant to Section 6.1 shall be required to consummate the transactions contemplated hereby (which approvals, consents true 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 Documentscorrect.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event 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 Administrative Agent (some of which were previously received by Administrative Agent as noted below and nothing new is required as of the Agent:Agreement Date):
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to all the Lenders, and complying with the terms of Section 2.9.this Agreement (previously received);
(iii) the Guaranty and the Hazardous Materials Indemnity Agreement executed by the Parent and any other Person that would be required under Section 8.13. Guarantor (previously received), as consented to become a party to the Guaranty as below, together with all of the Effective Dateother Loan Documents executed by Borrower(previously received);
(iv) the Security Documents (Apreviously received), as amended of even date herewith, and other Loan Documents, executed by Borrower and the other parties thereto (previously received);
(v) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerBorrower and Guarantor, the Parent and the other Guarantors addressed to the Administrative Agent and the Lenders and (B) an opinion of ▇▇▇▇▇▇ & Bird LLPcovering due execution, counsel to the Agent addressed to the Agent authority, no conflict, enforceability, local matters and the Lendersother matters, all as required by Administrative Agent;
(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 Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, 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 Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, issued as of a recent date by the Secretary of State of the state of formation of each such Person 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) of each Loan Party Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, 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 Conversion and Notices of Continuation;
(viiiix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) Loan Party of Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent 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 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 Date;
(x) a Borrowing Base Certificate calculated as of December 31, 2017 (but assuming that the total amount of the Loans outstanding for purposes of calculating Testing Debt Yield and Testing LTV therein will be the amount of the Loans disbursed to Borrower on the Effective Date);
(xi) a Compliance Certificate calculated on a pro forma basis for the BorrowerGuarantor’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date2017;
(xii) evidence satisfactory a Disbursement Instruction Agreement effective as of or prior to the Agent Agreement Date (previously received);
(xiii) UCC, tax, judgment and lien search reports with respect to Borrower, Borrower Member, Guarantor and such other Persons as determined by Administrative Agent, and each Borrowing Base Property, in all necessary or appropriate jurisdictions, indicating that there are no Liens of record on such Property or related to such Persons other than Permitted Liens;
(xiv) copies of all Material Contracts and Specified Derivatives Contracts in existence on the Agreement Date (previously received);
(xv) copies of the form of Tenant Lease to be used and each Tenant Lease entered into as of the Agreement Date with respect to such Property (previously received);
(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 limitationincluding, 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 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 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 the Lenders, and the Specified Derivatives Providers, is each named as a lender’s loss payee and additional insured, as appropriate, on all insurance policies that Borrower, Guarantor or any other Affiliate of Borrower actually maintains with respect to any Property and improvements on such Property;
(xix) Subordination, Non-Disturbance and Attornment Agreements, and estoppel certain from such tenants as may be required by Administrative Agent, in form and substance reasonably acceptable to Administrative Agent (previously received);
(xx) all information requested by Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act;
(xxi) payment of mortgage and recording taxes, to the extent applicable, and delivery of such evidence and memoranda thereof as Administrative Agent shall reasonably require;
(xxii) delivery of all other space leases and subleases, management agreements, leasing agreements, parking agreements, licenses and permits, maintenance and service agreements, labor agreements, equipment leases, capital and operating budgets, copies of prior tax bills, flood zone certifications and other similar due diligence information and materials as Administrative Agent shall reasonably require (previously received);
(xxiii) a zoning report (PZR or similar), property condition report, Phase I and, if applicable, Phase II environmental audit as Administrative Agent shall reasonably require (previously received); and
(xiiixxiv) 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 31, 2007, concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary that which has had or could reasonably be expected to result in a Material Adverse EffectEffect (as reasonably determined by Administrative Agent) since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning Borrower and Guarantor delivered to Administrative Agent and the Lenders prior to the Agreement Date;
(ii) No no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened against any Borrower or Guarantor, the adverse determination of which could reasonably be expected to (A) result in would have 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 partyas reasonably determined by Administrative Agent);
(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 of: (A) any Applicable Law Law; or (B) any agreement, document or instrument to which any Loan Party Borrower or Guarantor 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
Sources: Revolving Loan Agreement (RREEF Property Trust, Inc.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder this Agreement 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) to the extent requested by each Lender, Revolving Notes and Term Terms Notes executed by the Borrower, payable to all Lenders, each applicable Lender (but excluding any Lender that has
(a) and complying with the terms of Section 2.9.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 (A) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, addressed to the Administrative Agent and the Lenders and covering the matters reasonably required by Administrative Agent and (B) an opinion of ▇▇▇▇▇▇▇ & Bird LLP, Maryland counsel to the Agent Borrower and ▇▇▇▇▇▇ 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 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, Notices of Conversion and Notices of 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 (taking into account the Unencumbered Pool Properties as of the Agreement Date) for the Borrower’s fiscal quarter ending December 31June 30, 20072014;
(xix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) intentionally omitted;
(xii) evidence satisfactory copies of all Material Contracts in existence on the Agreement Date not previously delivered to Administrative Agent;
(xiii) 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 for which an invoice has been provided at least three (3) Business Days prior to the date hereof, including including, without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xv) to the extent not previously delivered to Administrative Agent, 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;
(xvi) 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; and
(xiiixvii) such other documents and instruments as the Agent, or any Lender through the Agent, may reasonably request; anda complete listing of all Subsidiaries which are not Guarantors.
(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, 20072014, 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 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 Documents.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 USA Patriot Act; and
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 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.9.2.8.(a);
(iii) the Guaranty executed by each of the Parent and any each Material Subsidiary (other Person that would be required under Section 8.13. to become than an Excluded Subsidiary or a party to the Guaranty Foreign Subsidiary) existing 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 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 (x) as of a recent date by the Secretary of State of the state of formation of such PersonLoan Party and (y) by the Secretary or Assistant Secretary (or other individual performing similar functions) of such Loan Party as being a true, correct and complete copy thereof as of the 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 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;
(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 the Notice of Borrowing, Notices of Conversion and Notices of Continuation;
(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 opinion of counsel to the Loan Parties (other than any Accommodation Subsidiary that is not a Material Subsidiary), if anyaddressed to the Administrative Agent and the Lenders and covering such customary matters as may be required by the Administrative Agent;
(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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to the Agent that the Fees, if any, Fees 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;
(x) a Compliance Certificate calculated as of the Effective Date (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) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 4.1.(b)(i), (ii), (iv) and (vi) required to be delivered in connection with any Unencumbered Property and a pro forma operating budget for such Property with respect to the current fiscal year;
(xii) 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
(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 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, 2007budgets, pro forma data and forecasts concerning the Borrower, the Parent, any other Loan Party or any other Subsidiary the Borrower and its 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;
(iic) 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 (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 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 (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, 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
(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. The provisions of clauses (iv) There through (viii) of the immediately preceding subsection (a) shall not have occurred or exist any other material disruption of financial or capital markets apply to Accommodation Subsidiaries that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documentsare not also Material Subsidiaries.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, Borrower payable to all Lenders, each Lender and complying with the terms applicable provisions of Section 2.9.2.12, and the Swingline Note executed by the Borrower payable to the Swingline Lender (which Notes shall be promptly forwarded by the Agent 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 opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to The Pledge Agreement executed by 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) A favorable opinion of counsel to the certificate Obligors, addressed to the Agent, the Lenders and the Swingline Lender, addressing such matters as Agent may reasonably require;
(vi) The Governing Documents of the 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;
(vivii) 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 Borrowing Base Properties 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;
(viiviii) 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 Continuation, Notices of Conversion and Notices of ContinuationSwingline Borrowings and to request the issuance of Letters of Credit;
(viiiix) 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) 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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) 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 the Lenders on or prior to the Effective Date;
(xi) A pro forma Compliance Certificate calculated as of November [ ], 2010;
(xii) A Borrowing Base Certificate calculated as of November [ ], 2010 showing compliance with Section 2.13;
(xiii) Each of the Lenders, including without limitation, the fees and expenses of counsel conditions set forth in Section 7.17 shall have been satisfied with respect to the Agent, have been paidCollateral; and
(xiiixiv) 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, 2007budgets, 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 Effective 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: Credit Agreement (Wells Core Office Income Reit Inc)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Loan Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms applicable provisions of Section 2.92.10.;
(iii) the Guaranty executed by the Parent and any other Person each Subsidiary that would be required under Section 8.13. to become a party to the Guaranty owns or leases an Initial Unencumbered Pool Property, if any, 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 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;
(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 Conversion Continuation and Notices of ContinuationConversion;
(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 or a certificate of no change, certified by such Secretary or Assistant Secretary, as to such by-laws, operating agreements, partnership agreements or other comparable documents of each Loan Party delivered in connection with the Revolving Credit Agreement;
(Bviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of 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 opinion of counsel to the Loan Parties, addressed to the Agent, and the Lenders in form reasonably satisfactory to the Agent;
(x) 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;
(xi) a Compliance Certificate calculated as of the Effective Date (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);
(xii) a Borrowing Base Certificate calculated as of the Effective Date;
(xxiii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007Reserved;
(xixiv) a Transfer Authorizer Designation Form effective as disbursement statement setting forth in reasonable detail the application of the Agreement Loans being funded on the Effective Date;
(xiixv) 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 paidReserved; and
(xiiixvi) 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, 2007budgets, 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 to effect or permit the occurrence of the first Credit Event hereunder 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 if requested by any Lender, Bid Rate Notes and Term Notes for such requesting Lenders, executed by the Borrower, payable to all Lenderseach Lender (or Designated Lender, if applicable) and complying with the terms applicable provisions of Section 2.92.11., 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 Conversion Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote Acceptances, Notices of Continuation and Notices of ContinuationConversion 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, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) 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
(xiii) 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, 2007, 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 obligation of the Lenders to effect or permit the occurrence fund their respective portions of the first Credit Event hereunder Loan 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 Term Notes executed by the Borrower, Borrower payable to all Lenders, each Lender and complying with the terms applicable provisions of Section 2.9.2.10 (which Notes shall be promptly forwarded by the Agent 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 Conversion Continuation and Notices of ContinuationConversion;
(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) an Unencumbered Pool Certificate calculated as of The Fees then due and payable under Section 3.6, and any other Fees and invoiced expenses payable to the Agent and the Lenders on or prior to the Effective Date;
(x) a A pro forma Compliance Certificate calculated on a pro forma basis for as of September 30, 2011, after giving effect to the Borrower’s fiscal quarter ending December 31, 2007Loan;
(xi) A certificate signed by a Transfer Authorizer Designation Form effective as Responsible Officer of the Agreement Date;Borrower certifying that each Property to be treated as an Unencumbered Asset on the Effective Date satisfies all of the requirements for an Unencumbered Asset set forth in the definition thereof; and
(xii) 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
(xiii) 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, 2007budgets, 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 Effective 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 the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenderseach applicable Lender that has requested that it receive Notes and the Swingline Note executed by the Borrower payable to the Swingline Lender to the extent that it has requested that it receive Notes, and and, in each case, complying with the terms of Section 2.9.2.12.(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;
(ivi) the Pledge Agreement, executed by each of the Parent, Borrower and each Subsidiary Guarantor party thereto from time to time and (Aii) each other Security Document, executed by the parties thereto;
(v) an opinion letter of ▇D▇▇▇▇ & ▇▇▇▇▇▇▇, 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 and Notices of 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 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 (f) 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, 20072021;
(xixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixvi) 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
(xiiixix) 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, 2007budgets, 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 initial public offering of the Equity Interests of the Parent, pursuant to a prospectus and Form S-1 registration statement 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 $200,000,000, and the capital structure and corporate structure of the Parent and its Subsidiaries shall be reasonably 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
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder on or after the Agreement 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 reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.9.2.12(a);
(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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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;
(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 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);
(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 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;
(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 Conversion and Notices of 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 Asset Certificate calculated as of the Effective DateDecember 31, 2021;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 20072021;
(xi) a Transfer Authorizer Designation Form effective as Closing Certificate substantially in form of Exhibit T, executed on behalf of the Agreement DateBorrower by an authorized officer of the Borrower;
(xii) [reserved];
(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
(xiiixiv) 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, 2007budgets, 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;
(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; and
(ivf) 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 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.
Appears in 1 contract
Initial Conditions Precedent. The obligation effectiveness of this Agreement and the making of the Lenders to effect or permit Loans on the occurrence of the first Credit Event Effective Date 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 Term Notes executed by the Borrower, a Note payable to all Lenders, each Lender requesting a Note prior to the Effective Date pursuant to and complying with the terms of Section 2.9.2.13(a);
(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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇Polsinelli PC, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, 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 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 organization or 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 the Notice of Borrowing, Notices of Conversion and Notices of 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 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 DateParent Guarantor’s fiscal quarter ended March 31, 2017;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) 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;
(xii) an amendment to Revolving Credit Agreement, executed by the requisite parties, which amendment shall, inter alia, permit the term loan facility evidenced hereby and effect changes to the Revolving Credit Agreement which conform with the applicable terms of this Agreement, all in form and substance reasonably satisfactory to the Administrative Agent; and
(xiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) no Default or Event of Default shall exist;
(c) 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;
(d) the representations and warranties made or deemed made by the Borrower and each other Loan Party in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1 shall be true and correct; and
(be) In the good faith judgment of the 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 31, 2007, 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 approvalsa timely Notice of Borrowing. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in clauses (b), consents (d) and waivers(e) (both as of the date of the giving of notice relating to such Credit Event and, and shall have made or given all necessary filings and notices unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as shall be required to consummate of the transactions contemplated hereby (which approvals, consents and waivers shall be in full force and effect) without date of the occurrence of any default undersuch Credit Event). In addition, 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 shall be deemed to have represented to the Administrative Agent and the Lenders at the time such Loan Party is made that all conditions to fulfill its obligations under the making of such Loan Documents to which it is a party; and
(iv) There shall not contained in this Article VI 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 satisfied.
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 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 Term Notes executed by the Borrower, payable to all Lenders, Lenders and complying with the terms of Section 2.9.;
(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 Conversion and Notices of Continuation;
(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 (A) for the Borrower’s fiscal quarter ending September 30, 2007; (B) calculated on a pro forma basis for the Borrower’s fiscal quarter year ending December 31, 2007;
; and (xiC) calculated on a Transfer Authorizer Designation Form effective as pro forma basis for each of the Agreement DateBorrower’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
(xiii) 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, 2007budgets, 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 the Lenders to effect or permit make the occurrence of the first Credit Event hereunder initial 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.92.7.(a) and complying with the terms of Section 2.7.
(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 ▇▇▇▇▇ & the Borrower’s general counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Borrower, the Parent Borrower and the other Guarantors Loan Parties, in each case 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 request;
(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 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 is required to be so qualifiedLoan Party owns a Hotel or any non-hotel real property asset;
(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 BorrowingBorrower, Notices of Conversion Borrowing and Notices of ContinuationSwingline Borrowing;
(viiivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of such Loan Party, (B) 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 (BC) 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;
(xviii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20072013;
(xiix) reasonably detailed projected financial statements of Apple REIT for the 2014 and 2015 fiscal years (including projected balance sheets, statements of income and statements of cash flow) and setting forth the material underlying assumptions applicable thereto;
(x) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixi) evidence satisfactory to the Agent that the Feesa Notice of Borrowing requesting Revolving Loans in an amount equal to, if anyor greater than, all Fees 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;
(xii) [RESERVED];
(xiii) evidence that the Fees, if any, then due and payable under Section 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
(xiiixiv) such other documents documents, agreements, instruments, credit applications, financial statements, authorizations and instruments such information concerning Apple REIT, the Borrower and its Subsidiaries and their respective businesses, operations and conditions (financial and otherwise) 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, 2007public filings with the U.S. Securities and Exchange Commission, budgets, pro forma data and forecasts concerning the Borrower, Borrower and the Parent, any other Loan Party or any other Subsidiary Parties 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 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 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; 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 applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, 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;
(vi) all acts and conditions (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws; and
(vii) all documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Loan Documents shall be satisfactory in form and substance to the Administrative Agent and its counsel, and all legal and financial due diligence on the Borrower and the other Loan Parties and their operations and conditions shall be completed and shall be satisfactory to the Administrative Agent and the Lenders.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder is subject to the Effective 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 Term Bid Rate Notes executed by the Borrower, payable to all LendersLenders or any Designated Lender, if applicable, and complying with the terms of Section 2.92.11.; 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 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, Notices of Conversion and Notices of Continuation;
(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, 2008;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20072008;
(xi) a Closing Certificate substantially in form of Exhibit R, executed on behalf of the Borrower by an authorized officer of the Borrower;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixiii) 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) evidence satisfactory to the Agent that upon funding of the Loans requested on the Effective Date all amounts owing under the Existing Credit Agreement, including without limitation all principal, interest and fees, will be repaid in full; and
(xiiixv) 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, 2007budgets, 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 the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.11. 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 and Notices of Continuation;
(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, 20072001;
(xi) a Transfer Authorizer Designation Form effective as pro forma calculations, together with detailed assumptions, establishing that the Parent, and when appropriate its consolidated Subsidiaries, will be in compliance with the covenants contained in Section 10.1. at the end of each of the Agreement Datenext eight fiscal quarters;
(xii) evidence satisfactory a copy of the Existing Credit Agreement, including all amendments thereto;
(xiii) 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
(xiiixxi) 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, 2007budgets, 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 initial disbursement of Loan proceeds 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 reasonably satisfactory to the Administrative Agent:
(ia) counterparts of this Agreement executed by each of the parties hereto;
(iib) Revolving Notes and Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender and complying with the terms of Section 2.9.2.6, but excluding any Lender that has requested that it not receive Notes;
(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 opinion(s) of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the BorrowerBorrower and such other Loan Parties organized in Delaware 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 the Borrower 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 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 Conversion and Notices of ContinuationLoan Interest Rate Request Forms in the forms attached hereto as Exhibit C;
(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 calculated on a pro forma basis and an Unencumbered Asset Value Certificate for the Borrower’s fiscal quarter ending December 31September 30, 20072015;
(xij) a Transfer Authorizer Designation Form UCC, tax, judgment and lien search reports with respect to the Borrower in all necessary or appropriate jurisdictions indicating that there are no liens of record other than Permitted Liens;
(k) fully executed and completed Borrower Authorization Forms effective as of the Agreement Date;
(xiil) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6., together with a complete listing of all other Subsidiaries which are Non-Guarantor Subsidiaries;
(m) all 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
(xiiin) 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, 2007, 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: Loan Agreement (Equity One, Inc.)
Initial Conditions Precedent. The obligation effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder this Agreement 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 Term Notes executed by the Borrower, a Note payable to all Lenderseach Lender not party to the Third Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (excluding, and in each case, any Lender that has requested that it not receive a Note), in each case complying with the terms of Section 2.9.2.13(a);
(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 LLPPC, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative 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 organization or 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 Conversion and Notices of 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 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 DateParent Guarantor’s fiscal quarter ended December 31, 2014;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) 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;
(xii) evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Third Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (B) each Departing Lender shall have received payment in full of all of the “Obligations” under the Third Amended Credit Agreement (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as defined in the Third Amended Credit Agreement); and
(xiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) no Default or Event of Default shall exist;
(c) 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
(bd) In The representations and warranties made or deemed made by 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, 2007, concerning the Borrower, the Parent, any Borrower and each 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 this Agreement and 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 Documents delivered pursuant to Section 6.1 shall be required to consummate the transactions contemplated hereby (which approvals, consents true 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 Documentscorrect.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of make the first Credit Event Loan 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 Term Notes executed by the Borrower, payable to all Lenders, the Lenders and complying with the terms of Section 2.9.2.9(a);
(iii) the Partial Payment and Limited 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 DateGuarantors;
(iv) the Hazardous Material Indemnity executed by the Borrower and Guarantors;
(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 Lenders;
(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 Conversion and Conversion, Notices of ContinuationContinuation and requests for disbursement from the FF&E 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 Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xi) 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 3.6.3.5, 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;
(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 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 or any Loan Party actually maintains with respect to the Property and improvements thereon; and
(xiiixiv) a Security Deed;
(xv) a Management Agreement Assignment/Subordination with respect to the Management Agreement and a “comfort letter” from the Franchisor;
(xvi) copies of all Material Contracts (to the extent not theretofore delivered) and, if requested by the Administrative Agent, collateral assignments executed by Borrower or the Operating Lessee (as applicable) in favor of the Administrative Agent for its benefit and the benefit of the 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 in the amount of the Loan in favor of the Administrative Agent for its benefit and the benefit of the Lenders, with respect to the Property, including endorsements with respect to such items of coverage as the Administrative Agent may request and which endorsements are available and customary in the jurisdiction where the Property is located, issued by a title insurance company acceptable to the Administrative Agent, showing the fee simple title to the Property and improvements described in the Security Deed as vested in Borrower, and insuring that the Lien granted by such Security Deed is a valid Lien against the Property, subject only to the Permitted Liens and such other restrictions, encumbrances, easements and reservations as are acceptable to the Administrative Agent (the “Title Policy”);
(xviii) documents required to establish, or evidencing the establishment of, the FF&E Reserve Account; and
(xix) such other documents instruments, documents, agreements, financing statements, certificates, opinions and instruments other Security Documents 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, 2007budgets, pro forma data and forecasts concerning the Borrower, Guarantors or the Parent, any other Loan Party or any other Subsidiary Borrower 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 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.;
(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 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 the Parent, the Borrower and each Loan Party of the other Guarantors that owns any Unencumbered Pool Property certified as of a recent date acceptable to the Agent 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 acceptable to the Agent 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 Conversion and Notices of Continuation;
(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 June 30, 20072003;
(xi) a Transfer Authorizer Designation Form effective as pro forma calculations, together with detailed assumptions, establishing that the Parent, and when appropriate its consolidated Subsidiaries, will be in compliance with the covenants contained in Section 10.1. at the end of each of the Agreement Datenext eight fiscal quarters;
(xii) evidence satisfactory 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;
(xiii) assignments of each of the New York Collateral Documents executed by the Existing Lender, such assignments relating to the Agent that applicable Mortgages to be substantially in the Feesform of Exhibit J (each a "Mortgage Assignment");
(xiv) modifications to each of the New York Collateral Documents executed by the applicable Loan Parties, if any, then due and payable under Section 3.6.such modifications relating to the applicable Mortgages to be substantially in the form of Exhibit K (each a "Mortgage Modification");
(xv) 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;
(xvi) 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 L (each an "Environmental Indemnity Agreement"); and
(xiiixvii) 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, 2007budgets, 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 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 effectiveness of the Lenders to effect or permit the occurrence of the first Credit Event hereunder this Agreement 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 Term Notes executed by the Borrower, a Note payable to all Lenderseach Lender not party to the Fourth Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (excluding, and in each case, any Lender that has requested that it not receive a Note), in each case complying with the terms of Section 2.9.2.14(a);
(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 LLPPC, counsel to the Agent Borrower and the other Loan Parties, addressed to the Administrative 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 organization or 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 Conversion and Notices of 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 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 DateParent Guarantor’s fiscal quarter ended March 31, 2018;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixi) 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;
(xii) evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Fourth Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (B) the Term Loan Agreement has been amended with the consent of the “Required Lenders” under (and as defined in) the Term Loan Agreement effecting certain changes to such agreement which conform with the applicable terms of this Agreement and other relevant Loan Documentation;
(xiii) such other documents documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) a certificate signed by a Responsible Officer of each Loan Party certifying that no Default or Event of Default shall exist and the representations and warranties made or deemed made by the Borrower and each other Loan Party in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1 of this Agreement shall be true and correct; 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, 2007, concerning the Borrower, the Parent, any Borrower and each other Loan Party or any other Subsidiary that has had or could reasonably be expected shall have provided all information requested by the Administrative Agent and each Lender in order to result in a Material Adverse Effect;
comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and (ii) No litigationto the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, actionat least five (5) days prior to the Effective Date, suitany Lender that has requested, 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 written notice to the Borrower at least ten (B10) restrain or enjoindays prior to the Effective Date, impose materially burdensome conditions ona Beneficial Ownership Certification, or otherwise materially and adversely affect, in relation to 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 approvalssuch Beneficial Ownership Certification (provided that, consents upon the execution and waiversdelivery by such Lender of its signature page to this Agreement, and shall have made or given all necessary filings and notices as the condition set forth in this clause (ii) shall be required deemed 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 Documentssatisfied).
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of make the first Credit Event Loan 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 Term Notes executed by the Borrower, payable to all Lenders, the Lenders and complying with the terms of Section 2.9.2.13.(a);
(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 Conversion and Conversion, Notices of ContinuationContinuation and requests 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, 20072010;
(xi) each of the items referred to in Section 6.3. shall be delivered with respect to the Initial Collateral Properties;
(xii) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xiixiii) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions indicating that there are no Liens of record with respect to the assets of each such Loan Party other than Permitted Liens;
(xiv) evidence 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;
(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
(xiiixvi) 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, 2007budgets, 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 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 Term Notes executed by the Borrower, payable to all Lenderseach Lender, (B) Bid Rate Notes executed by Borrower, each in the full amount of the potential Bid Rate Borrowing and one payable to each Lender, and (C) a Swingline Note executed by Borrower and payable to the Swingline Lender, each complying with the terms of Section 2.9.2.11;
(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 Conversion and Conversion, Notices of ContinuationContinuation and requests 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, 20072008;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to the Administrative 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
(xiiixiv) 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, 2007budgets, 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 make the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.10;
(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 Conversion and Notices of Continuation;
(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 Certificate calculated as of the Effective Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s 's fiscal quarter ending December 31, 2007;
(xix) a Transfer Authorizer Designation Form effective certificate of the Chief Financial Officer or the Chief Accounting Officer of Borrower, substantially in the form of a Compliance Certificate, certifying that as of the Agreement Datedate of Closing, and taking into account the Loan, the Borrower and Parent are in compliance with the requirements of Section 9.1;
(xiixi) 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
(xiiixii) 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, 2007budgets, 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 hereunder, whether as the making of a Loan, 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 Term Notes executed to the extent requested by the Lenders, a Note made by the Borrower, payable to all Lenders, each applicable Lender and complying with the terms of Section 2.9.2.8(a);
(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 Conversion and Notices of 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 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, 20072018;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
evidence that (xiix) 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
(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 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, 2007, 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 making of the Term Loan 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, Borrower payable to all Lenders, and complying with each Lender (which Notes shall be promptly forwarded by the terms of Section 2.9.Agent 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 Conversion and Notices of Continuation;
(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;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2007;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) evidence satisfactory to There shall have occurred a contemporaneous closing under the Agent that the FeesRevolving Credit Agreement, 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, conditions precedent thereto shall have been paidsatisfied; and
(xiii) 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) 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, 2007budgets, 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 the occurrence of the first Credit Event hereunder 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 Term Notes executed by the BorrowerBorrowers, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.12(a);
(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, requests for Letters of Credit, Notices of Conversion and Notices of 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 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, 20072012;
(xi) with respect to each Property identified on Schedule 4.1, each of the items referred to in Section 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;
(xiixiii) UCC, tax, judgment and lien search reports with respect to the 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 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;
(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
(xiiixix) 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, 2007budgets, 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 effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of make the first Credit Event Loan hereunder is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Lenders and the Agent shall have received each of the following, in form and substance satisfactory to the Agent:Agent (acting at the written direction of the Lenders):
(i) counterparts Each Loan Document to be entered into on the Effective Date by a Loan Party, in each case duly executed and delivered by Responsible Officer of this Agreement executed by each of the parties heretoLoan Parties party thereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (other than any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.9.2.11(a);
(iii) the Subsidiary Guaranty executed by each of the Parent and any other Person that would Subsidiary 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 LLP, counsel to the Agent addressed to the Agent and the Lenders[Reserved];
(v) [Reserved];
(vi) 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 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;
(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 deliver, on behalf of the Borrower and Notices of Borrowing, Notices of Conversion and Notices of 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 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 as of the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31September 30, 20072025;
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date[Reserved];
(xii) Uniform Commercial Code financing statements in proper form for filing with the applicable secretary of state naming each Loan Party as debtor thereunder;
(xiii) copies of Uniform Commercial Code search reports listing all effective financing statements filed against each Loan Party, with copies of such financing statements;
(xiv) evidence satisfactory to the Agent that the Fees, if any, then due and payable under Section 3.6.3.05, 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 AgentAgent and of the Lender Advisors, have been paid; and
(xiii) 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, 2007, 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;
(iixv) No a customary certificate, dated the Effective Date and signed by an authorized officer of Borrower, certifying that no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could would 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 partyEffect;
(iiixvi) The a copy of each of the Property Management Agreement and Business Management Agreement certified as true, correct and complete by the a Responsible Officer of Borrower;
(b) [Reserved];
(c) [Reserved];
(d) [Reserved];
(e) [Reserved];
(f) [Reserved];
(g) the Borrower and the each other Loan Parties Party shall have provided all information requested by the 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, to the extent requested not less than five (5) Business Days prior to the Effective Date;
(h) at least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, on behalf of itself to the extent that it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification to each Lender that so requests such a Beneficial Ownership Certification;
(i) the Agent shall have received all approvalsevidence, consents in form and waivers, and shall have made or given all necessary filings and notices as shall be required substance satisfactory to consummate the transactions contemplated hereby Agent (which approvals, consents and waivers shall be in full force and effect) without acting at 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 written direction of the Lenders), that, as of the Effective Date, the organizational structure of Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it and each Subsidiary of Borrower is a party; andas set forth on Schedule 5.1 attached hereto;
(ivj) There since June 12, 2025, there shall not have occurred or exist any other material disruption of financial event or capital markets that could occurrence which would reasonably be expected to have a material adverse effect on the Debtors’ business, operations, properties, assets, condition (financial or otherwise) or liabilities, taken as a whole (other than events leading up to the Bankruptcy Cases and events that would reasonably be expected to result from the filing or commencement of the proceedings under chapter 11 of the Bankruptcy Code and the continuation and prosecution thereof, including any decline in business relationships, reputation, or financial performance resulting from the Chapter 11 filing), on the ability of the Debtors, taken as a whole, to perform their respective payment obligations under the Loan Documents (other than as a result of events leading up to and resulting from the commencement of the Bankruptcy Cases and the continuation and prosecution thereof), or the ability of the Agent and the Lenders to enforce their rights and remedies under the Loan Documents (provided, that any effects resulting from changes in general economic conditions, financial markets, industry conditions, or geopolitical events, except to the extent such effects have a materially disproportionate impact on the Borrower relative to similarly situated companies, shall not constitute a material adverse effect and adversely affect no event shall constitute a material adverse effect to the transactions contemplated extent such event is expressly addressed by the Milestones or permitted variances under Section 7.18(b));
(k) the Petition Date shall have occurred, and the Borrower and each Guarantor shall be a debtor and a debtor-in-possession;
(l) the Restructuring Support Agreement shall be in full force and effect and shall not have been amended or modified in a manner that is materially adverse to the Agent or Lenders without the prior written consent of the Requisite Lenders;
(i) the Interim DIP Order shall have been entered by the Bankruptcy Court and shall not have been reversed, amended, stayed, vacated, terminated or otherwise modified in any manner that is materially adverse to the Agent or Lenders without the prior written consent of the Agent and the Requisite Lenders and (ii) no motion for reconsideration of the Interim DIP Order shall have been timely filed by any Debtor or any Subsidiary thereof;
(n) the Agent and the Lenders shall have received a copy of the Approved Budget, certified by a Responsible Officer of the Borrower, and in form and substance reasonably satisfactory to the Requisite Lenders;
(o) all proposed “first day orders” and motions to be filed at the time of commencement of the Bankruptcy Cases or shortly thereafter shall have been reviewed in advance by the Requisite Lenders or their counsel and shall be in form and substance reasonably satisfactory to the Requisite Lenders;
(p) no trustee, examiner, or receiver shall have been appointed or designated with respect to the Debtors’ business, properties or assets which, if granted, would result in a person other than the Debtors exercising control over the Debtors’ assets;
(q) all “first day” orders entered by the Bankruptcy Court pertaining to cash management and adequate protection and all motions and documents filed in connection therewith, shall be in form and substance reasonably acceptable to the Requisite Lenders;
(r) all fees and expenses (including, without limitation, legal fees and expenses) payable under this Agreement or otherwise to be paid to the Agent and the Lenders, including the Lender Advisors, on or before the Effective Date shall have been paid;
(s) the DIP Order, upon entry thereof and subject to the terms thereof, shall be effective to create in favor of the Agent, for the benefit of the Secured Parties, legal, valid, enforceable, perfected and (if applicable) unavoidable Liens on and security interests in the Collateral as set forth in Section 6.02(l)(i) and Exhibit C to the DIP Order, and subject in all respects to Section 12.25. The Loan DocumentsParties shall have delivered UCC financing statements, in suitable form for filing with the applicable secretary of state, and shall have made arrangements for the filing thereof with the applicable secretary of state and for the recording of the DIP Order with the applicable local real property recording offices, in each case, that are reasonably acceptable to the Requisite Lenders; and
(t) the Borrower shall have established the Segregated Account. The Lenders shall notify the Borrower and the Agent of the occurrence of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived), and such notice shall be conclusive and binding evidence of the occurrence thereof.
Appears in 1 contract
Sources: Secured Debtor in Possession Term Loan Credit Agreement (Office Properties Income Trust)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Bid Rate Notes executed by the Borrower, payable to all LendersLenders or any Designated Lender, if applicable, and complying with the terms of Section 2.92.11.; 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, Notices of Conversion and Notices of Continuation;
(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, 20072005;
(xi) a Transfer Authorizer Designation Form effective as Closing Certificate substantially in form of Exhibit R, executed on behalf of the Agreement DateBorrower by an authorized officer of the Borrower;
(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
(xiii) 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, 2007budgets, 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 the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, each Lender (other than any 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 2.9.2.10(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 and Notices of Continuation;
(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, 20072013;
(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) a Transfer Authorizer Designation Form effective as Notice of the Agreement DateBorrowing;
(xii) the fully 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 3.63.5 as of the Agreement Date or under the Fee Letter., together with all other fees, expenses and reimbursement amounts due and payable
(xiv) to the Agent and any of extent requested by the LendersAgent, including 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 fees and expenses of counsel to extent requested by the Agent, have been paid; andlien, litigation, judgment and bankruptcy, search results from the appropriate jurisdictions for each Loan Party;
(xiiixvi) 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, 2007, 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 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 Term Notes executed by the Borrower, payable to all Lenders, and complying with the terms of Section 2.9.each applicable Lender;
(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, requests for Letters of Credit, Notices of Conversion and Notices of 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 March 31, 20072014;
(xix) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) 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
(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 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, 2007budgets, 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 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 executed by the Borrower payable to each Lender and Term complying with the applicable provisions of Section 2.11, Competitive Advance Notes executed by the Borrower, Borrower payable to all Lenderseach Lender, and complying with the terms of Section 2.9.Swingline Note executed by the Borrower payable to the Agent (which Notes shall be promptly forwarded by the Agent 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 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 the addressing such matters as Agent addressed to the Agent and the Lendersmay require;
(v) the certificate The Governing Documents of 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 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 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 required to be so qualifiedorganized;
(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, 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 Conversion and Swingline Borrowings, Notices of Continuation, Notices of Conversion and Competitive Bid Requests and to request the issuance of Letters of Credit;
(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) 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;
(x) a A Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending as of December 31, 2007;2004; and
(xi) a Transfer Authorizer Designation Form effective as of the Agreement Date;
(xii) 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
(xiii) 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, 2007budgets, pro forma data and forecasts concerning GBP, General Partner, the Borrower, the Parent, any Subsidiaries and the other Loan Party or any other Subsidiary Parties 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 other Loan Party to fulfill its the respective obligations under the Loan Documents to which it is a party;
(iii) The Borrower Borrower, GBP 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 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 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: Credit Agreement (Gables Realty Limited Partnership)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.92.12.
(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[reserved];
(iv) (A) 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;
(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 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);
(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 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;
(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 and Notices of 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 Asset Certificate calculated as of the Effective DateMarch 31, 2021;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December March 31, 20072021;
(xi) a Transfer Authorizer Designation Form effective as Closing Certificate substantially in form of Exhibit T, executed on behalf of the Agreement DateBorrower by an authorized officer of the Borrower;
(xii) [reserved];
(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 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
(xiiixiv) 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, 2007budgets, 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;
(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; and
(ivf) 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 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.
Appears in 1 contract
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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: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 Term Notes executed by the Borrower, payable to all Lenders, each Lender and complying with the terms of Section 2.9.2.10.(a);
(iii) a Guaranty executed by each of the Guarantors initially to be a party thereto, and 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 Date;
(iv) (A) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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 incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party and the Parent certified as of a recent date by the Secretary of State of the state of formation of such Person or 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 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 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 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, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(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 a Borrowing Base Certificate calculated as of the Effective Date;June 30, 2009
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s 's fiscal quarter ending December 31June 30, 20072009;
(xi) with respect to each Property identified on Schedule 4.1., each of the items referred to in Section 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;
(xiixiii) UCC, tax, judgment and lien search reports with respect to the Borrower (or 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 with respect to the Borrowing Base Properties and Specified Derivatives Contracts in existence on the Agreement Date;
(xv) copies of the form of Tenant Lease to be used for each Borrowing Base Property from the Effective Date until the Maturity Date and each Tenant Lease entered into as of the Agreement Date with respect to such Borrowing Base Property;
(xvi) the Fee Letter;
(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;
(xviii) insurance certificates, or other evidence, providing that the insurance coverage required under the Security Documents (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 non-payment 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 Borrower, any Loan Party or any other Subsidiary actually maintains with respect to any Borrowing Base Property and improvements on such Borrowing Base Property; and
(xiiixix) 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, 2007budgets, 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 is obligations under the Loan Documents to which it is a partyparty ; 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 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 Term Notes executed by the Borrower, payable to all Lenders, each applicable Lender (excluding any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.9.2.12
(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 and Notices of 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 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, 20072014;
(xixii) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
(xiixiii) 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
(xiiixviii) 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, 2007budgets, 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 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 Term Notes (or replacement Notes, as the case may be) of each Class executed by the Borrower, payable to all Lenderseach Lender of such Class that has requested that it receive a Note of such Class, and complying with the terms of Section 2.9.;2.11.(a) and 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 and Notices of 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, 2007;2018;
(xix) 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
(xiiixiv) 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, 2007budgets, 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 make the occurrence of the first Credit Event hereunder Initial Term Loan 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 Term Notes executed by the Borrower, payable to all Lenderseach applicable Lender, other than any Lender that has requested that it not receive a Note, and complying with the terms of Section 2.9.2.11.(a);
(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 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 Conversion and Notices of 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 31September 30, 20072011;
(xix) a Transfer Authorizer Designation Form effective as of the Agreement Initial Funding Date;
(xiixi) 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
(xiiixii) 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, 2007budgets, 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 Initial Funding 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 conditions set forth under Section 5.2. shall be satisfied; and
(ivv) There the Parent, 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 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 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 A Term Notes and Tranche B Term Notes (in each case, or replacements thereof) executed by the Borrower, payable to all Lenderseach applicable Lender that has requested that it receive Notes and, and in each case, complying with the terms of Section 2.9.;
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 Date;
Required Guarantor; (iv) [reserved]; (Av) an opinion letter of ▇▇▇▇▇ & ▇▇▇▇▇▇▇Cooley LLP and Venable LLP (with respect to Maryland law matters), counsel to the Borrower, the Parent 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 Lenders;
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 92 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, requests for Letters of Credit, Notices of Conversion and Notices of 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 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 31September 30, 2007;
2024; (xixv) a Transfer Authorizer Designation Form Disbursement Instruction Agreement effective as of the Agreement Date;
; (xiixvi) an amendment to the documentation relating to the term loan facility maturing in 2027 and agented by Wells Fargo Bank, National Association shall be effected and closed substantially simultaneously with the Effective Date; (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
(xiiixviii) 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 shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since December 31, 2007, 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 (NETSTREIT Corp.)
Initial Conditions Precedent. The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder 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 Term Notes executed by the BorrowerBorrowers, payable to all Lenders, each Lender (if requested by such Lender) and complying with the terms applicable provisions of Section 2.9.2.10;
(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 Continuation, Notices of Conversion and Notices to request the issuance of ContinuationLetters 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;
(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, 2007Lenders may reasonably request;
(xixv) a Transfer Authorizer Designation Form effective as all documentation, recordings, filings and other actions in the judgment of the Agreement DateAgent required to collaterally assign the Collateral to the Agent for the benefit of the Lenders and to perfect the Agent’s first priority Lien therein for the benefit the Lenders shall have been completed;
(xiixvi) evidence satisfactory to the Agent that the Fees, if any, then due Borrower and payable under Section 3.6., together with each other Loan Party shall have provided all other fees, expenses and reimbursement amounts due and payable to information requested by the Agent and any each Lender in order to comply with the USA Patriot Act (Title III of the LendersPub. L. 107-56 (signed into law October 26, including without limitation, the fees and expenses of counsel to the Agent, have been paid; and2001));
(xiiixvii) 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, 2007budgets, 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.
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