Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are subject to the satisfaction or waiver of the following conditions precedent: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) counterparts of this Agreement executed by each of the parties hereto; (ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13; (iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto; (iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto; (v) counterparts of the Intercreditor Agreement executed by each of the parties thereto; (vi) complete and correct copies of the executed Second Lien Documents; (vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request; (viii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 and to request the issuance of Letters of Credit; (ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy; (x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person; (xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party 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; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy; (xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date; (xiv) [intentionally omitted]; (xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement; (xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing; (xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and (xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii). (b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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; (c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have 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 (d) The Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender. (e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof; (ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens); (iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition; (iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and (v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document. (f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent: (i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 3 contracts
Sources: First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are 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 each applicable Lender (but excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.132.12(a) and the Swingline Note executed by the Borrower;
(iii) counterparts of The Subsidiary Guaranty executed by the Security Documents executed (and acknowledged, if applicable) by each of the applicable parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of counsel to the Borrower and the such other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders in a form and substance satisfactory to the Administrative Agent; provided, however, unless a Subsidiary Guarantor is organized under the laws of Texas, Delaware or New York, the Borrower shall not be required to deliver due execution, authority and delivery opinions with respect to any Subsidiary Guarantor that is organized under the laws of a State where (A) the percentage of the aggregate sales of the Borrower and/or the Subsidiary Guarantors for such State to the total aggregate amount of sales for Borrower and/or the Subsidiary Guarantors is less than or equal to four percent (4%) or (B) the percentage of the aggregate assets of the Borrower and/or the Subsidiary Guarantors for such State to the total aggregate amount of assets for the Borrower and/or the Subsidiary Guarantors is less than or equal to four percent (4%);
(viiiv) 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 each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such 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 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 Loan Party is required to be so 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 Swingline Borrowing and requests for Letters of Credit, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiB) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiix) a Borrowing Base Certificate calculated as of the Cutoff Date;
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(xi) a Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xivxii) [intentionally omitted]the Fee Letter;
(xvxiii) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demandedLenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid paid;
(xiv) with respect to each Borrowing Base 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;
(xv) UCC, tax, judgment and lien search reports with respect to the Borrower and each other Loan Party in all jurisdictions reasonably requested by the Administrative Agent indicating that there are no liens of record on such property other than Permitted Liens;
(xvi) insurance certificates, or will be paid at closingother evidence, providing that the insurance coverage required under Section 8.5 is in full force and effect;
(xvii) Beneficial Ownership Certifications from the Effective Date Annual Business Plan, which Borrower and such other Persons as the Administrative Agent and Lenders shall be in form and substance reasonably acceptable to require;
(xviii) A certificate of the Requisite LendersBorrower certifying that the Loans are permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto together with supporting evidence thereto; and
(xviiixix) a duly executed such other documents, agreements and delivered modification to instruments as the Administrative Agent, or an agreement to modify any Lender through the PM Gallery Loan AgreementAdministrative Agent, in form and substance may reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii)request.
(b) No there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning 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;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (iA) have result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(cd) 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 without the occurrence of any default under under, conflict with or violation of (iA) any Applicable Law or (iiB) 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 (A) have 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
(de) The the Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderAct.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 2 contracts
Sources: Credit Agreement (LGI Homes, Inc.), Credit Agreement (LGI Homes, Inc.)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are 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 each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.132.10., and the Swingline Note executed by the Borrower;
(iii) counterparts the Guaranty executed by the Parent and each Subsidiary that owns or leases an Initial Unencumbered Pool Property, if any, as of the Security Documents executed (and acknowledged, if applicable) by each of the parties theretoEffective Date;
(iv) counterparts the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Guaranty executed Borrower and each other Loan Party certified as of a recent date by each the Secretary of State of the Guarantors initially party theretostate of formation of such Loan Party;
(v) counterparts 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 Intercreditor Agreement executed state of formation of each such 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 the parties theretostate in which such Loan Party has its principal place of business;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, and the officers of the Borrower then authorized 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 Swingline Borrowings, Notices of Continuation and Notices of Continuation Conversion and to request the issuance of Letters of Credit;
(ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xivii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of (i) 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiviii) an opinion of counsel to the Disbursement Instruction Agreement executed by Loan Parties, addressed to the Borrower effective as of Agent, the Agreement DateLenders and the Swingline Lender, in form reasonably satisfactory to the Agent;
(xivix) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent3.6., and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and Fees payable to the Administrative Agent and the Lenders on or prior to the Effective Date;
(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) a Borrowing Base Certificate calculated as of the Effective Date;
(xii) evidence that the Borrower’s reimbursement obligations under any letters of credit issued under the Existing Credit Agreement either shall be evidenced by a separate agreement between the issuer thereof and Borrower from and after the Effective Date or shall become Letters of Credit hereunder pursuant to the joinder by such issuer in this Agreement as a Lender;
(xiii) a disbursement statement setting forth in reasonable detail the application of the initial Loans being funded on the Effective Date;
(xiv) evidence that any lenders under the Existing Credit Agreement that are not continuing as Lenders hereunder have agreed to accept repayment of all amounts due them under the Existing Credit Agreement and terminate their commitments thereunder;
(xv) evidence that releases of any prior mortgages recorded on any of the Lenders for which payment has been demanded, Initial Unencumbered Pool Properties have been paid delivered to a third-party title insurance company for recordation and that, upon the recording thereof, such and that such Initial Unencumbered Pool Properties are free and clear from any liens or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lendersencumbrances; and
(xviiixvi) a duly executed such other documents, agreements and delivered modification to or an agreement to modify instruments as the PM Gallery Loan Agreement, in form and substance Agent on behalf of the Lenders may reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii)request.
(b) No In the good faith judgment of the Agent 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 the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its other 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 (i1) have result in a Material Adverse Effect or (ii2) 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
(ciii) 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 without the occurrence of any default under under, conflict with or violation of (i1) any Applicable Law or (ii2) 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 (A) have 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
(d) The Borrower and each other Loan Party shall have provided (i) all information requested by party or 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part ability of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan exercise its remedies hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 2 contracts
Sources: Credit Agreement (Kite Realty Group Trust), Credit Agreement (Kite Realty Group Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks Agent and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, hereunder are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13;
(iii) the Guaranty executed by each of the Guarantors initially to be a party thereto;
(iv) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto[Reserved];
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viiivii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 and to request the issuance of Letters of CreditContinuation;
(ixviii) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xix) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and Borrower, each other Loan Party and each Subsidiary party to a Mortgage or the Pledge Agreement (and in the case of a Loan Party or Subsidiary that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 any such Borrowing Base Mortgaged Property is located, if different from the state of formation of such Person;
(xix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party 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; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and Borrower, each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiixii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xivxiii) [intentionally omitted]the Initial Loan Budget;
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvixiv) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closingpaid;
(xviixv) such other documents and instruments as the Effective Date Annual Business PlanAdministrative Agent, which shall be in form and substance or any Lender through the Administrative Agent, may reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).request;
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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;
(c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have 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
(d) The Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) [Reserved].
(f) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateralowned, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(fg) With respect to each Borrowing Base Mortgaged Property, the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Mortgaged Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Mortgaged Property lies;
(ii) a policy or policies of title insurance (or a commitment on behalf of the title insurance company to issue its title policy as of the Effective Date in the form of a pro forma policy approved by the Administrative Agent) in the amount equal to the allocated loan amount of such real property and fixtures issued by ▇▇▇▇▇▇▇ Title Guaranty Company (the “Title Company”) insuring the Lien of each such Mortgage as a first priority Lien on the real property described therein, free of any other Liens except for Permitted Liens, together with such customary endorsements as the Administrative Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates and available based upon the existing survey and zoning reports for such Mortgaged Property, together with evidence reasonably satisfactory to the Administrative Agent of payment of all expenses and premiums of the Title Company and all other sums required in connection with the issuance of each title policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the appropriate real estate records;
(iii) (A) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such real property location in the United States (together with a notice about special flood hazard area status and flood disaster assistance, which, if applicable, shall be duly executed by the applicable Loan Party relating to such real property) and (B) if any such real property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under Applicable Law, including Regulation H of the FRB and the other Flood Insurance Laws and as required under Section 7.6 of the Existing Revolving Credit Agreement;
(iv) customary legal opinions in form and substance reasonably satisfactory to the Administrative Agent with respect to the mortgagor of such Mortgage and the enforceability and perfection of the applicable Mortgage and such other matters as the Administrative Agent shall reasonably require;
(v) owner’s title affidavits in reasonable form if necessary to induce the Title Company to issue the title policies and endorsements contemplated above; and
(vi) an opinion of counsel with respect to the enforceability of each Mortgage addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Pennsylvania Real Estate Investment Trust), Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness obligation of each Lender to make the initial Advance under this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are is subject to the satisfaction or waiver fulfilment of the following conditions precedent:
precedent at the time such Advance is made (a) The Administrative Agent shall have received in each of the followingcase, in form and substance satisfactory to the Administrative Agent:, acting reasonably):
(a) no Default or Event of Default has occurred or is continuing or would arise immediately after giving effect to or as a result of such Advance;
(b) such Advance will not violate any Applicable Law;
(c) no order, judgment or decree of any court, arbitrator or Governmental Agency shall purport to enjoin or restrain the Lenders from making an Advance;
(d) there is not pending or threatened, any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration by, against or affecting any Credit Party or any property of any Credit Party that has not been disclosed to the Administrative Agent by the Borrower in writing, and nothing has occurred and there has been no development in any such action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect;
(e) each of the representations and warranties of the Borrower contained in Article 5 and of the Credit Parties contained in any other Credit Document are true and correct on the date of the Borrowing Notice relating to such Advance and on the date of such Advance as if such representations and warranties were made on each such date;
(f) there has not occurred any change of circumstance or event since the date hereof, nor has any Administrative Agent become aware of any facts not previously disclosed or known, which the Administrative Agent determines could have a Material Adverse Effect;
(g) delivery of a certificate from a senior officer of each Credit Party in the form of Exhibit “D”:(i) attaching true copies of (A) the constating documents and by- laws including all amendments thereto, if any, (B) all resolutions of the board of directors or shareholders, as the case may be, approving the borrowing and other matters contemplated by this Agreement and the other Credit Documents to which it is a party and (C) a list of the officers and directors authorized to sign agreements together with their specimen signatures and (ii) certifying that all necessary permits and licenses relating to the operation of, and production at, the Mine have been obtained and none have been rescinded, cancelled or otherwise terminated in any respect;
(h) delivery of a certificate of status, compliance or like certificate with respect to each of the Credit Parties issued by the appropriate Governmental Entity of the jurisdiction of its incorporation and of each jurisdiction in which it owns any material assets or carries on any material business;
(i) counterparts delivery of this Agreement executed by a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit “C”;
(j) each of the Credit Documents specified in Section 2.10 have been duly executed and delivered by each Credit Party thereto and is in full force and effect enforceable against such parties heretothereto in accordance with its respective terms;
(iik) Revolving Notes evidence of registration or other perfection of the Security under the Security Documents in such jurisdictions as the Administrative Agent may require to ensure that such Security creates legal, valid, binding, enforceable and Term Notes executed by first- priority security interests in the Borrowerassets to which such Security relates, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) enforceable against third parties, trustees in bankruptcy and complying with the terms of Section 2.13similar officials;
(iiil) counterparts delivery of all discharges, subordination agreements, waivers and confirmations as may be required to ensure that all obligations under the Credit Documents are secured by first priority Liens on the property and assets of each Credit Party with such exceptions as are permitted pursuant to this Agreement or any of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien other Credit Documents;
(viim) an opinion delivery of favourable opinions of counsel to the Borrower each Credit Party, in customary form and the other Loan Parties addressing customary matters, addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as Administrative Agent’s Counsel;
(n) evidence showing the Administrative Agent may reasonably request;
(viii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 Finance Parties) as loss payee and Notices of Continuation and to request the issuance of Letters of Creditadditional insured on each Credit Party’s insurance policies;
(ixo) all Fees and other amounts then payable under 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (Credit Documents and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party 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; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other feesreasonable costs, expenses and reimbursement disbursements (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the legal fees and expenses of any local counsel, appraisers, consultants and other advisorsexpenses) amounts then due and payable to incurred by the Administrative Agent or any Lender in connection with the negotiation, preparation, execution and delivery of the Credit Documents and any due diligence or other matters relating to any of the Lenders for which payment has transactions contemplated in any of the Credit Documents have been demandedpaid in full;
(p) evidence of repayment in full of all the Notes and evidence that the Note Indenture, each of the Notes and all guarantees and all Liens (and all other documents, instruments, registrations, filings and similar evidence) relating thereto have been or will, simultaneously with such Advance, have been paid indefeasibly, fully and unconditionally terminated, discharged and released and none of the Credit Parties has any obligation or will be paid at closingliability in relation thereto;
(xviiq) receipt of all Authorizations which the Administrative Agent may require, including, all approvals from the Exchange in relation to the transactions contemplated by this Agreement and/or the other Credit Documents;
(r) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable Borrower has issued 193,237 Common Shares to the Requisite LendersOriginal Lender as duly paid and non assessable shares, as payment of the working capital facility bonus; and
(xviiis) a the Borrower has issued 108,696 Common Shares to the Original Lender as duly executed paid and delivered modification to or an agreement to modify the PM Gallery Loan Agreementnon assessable shares, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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;
(c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability payment of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(d) The Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lenderstandby facility break fee.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are 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 each applicable Lender (excluding any Lender that has requested that it not receive a NoteNotes) and complying with the terms of Section 2.132.10.(a) and the Swingline Note executed by the Borrower;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially to be a party thereto;
(iv) the Security Agreement executed by the Borrower and each Grantor;
(v) counterparts of the Intercreditor Pledge Agreement executed by each Pledgor, and all certificates issued with respect to any Equity Interests that are Collateral pursuant to the terms of the parties theretoPledge Agreement, together with an undated stock power covering each such certificate (or other appropriate instrument of transfer) duly executed in blank by the applicable Pledgor;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of outside counsel to the Borrower and the other Loan Parties Parties, included outside counsel admitted to practice law in the jurisdiction in which the Borrower is formed, outside counsel admitted to practice law in each jurisdiction in which each Property Owner is formed and outside counsel admitted to practice law in Maryland, addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders covering the legal matters set forth in Exhibit P;
(vii) 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 each Loan Party and covering for each manager or general partner of each Loan Party that is not also a Loan Party, in each case, certified as of a recent date by the Secretary of State of the state of formation of such matters as the Administrative Agent may reasonably requestLoan Party;
(viii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party and each manager or general partner of each Loan Party that is not also a Loan Party that is not also a Loan Party, in each case, issued as of a recent date by the Secretary of State of the state of formation of each such 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 each Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(ix) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party (or as applicable of the manager or general partner of such Loan Party) with respect to each of the officers of such Loan Party (or the manager or general partner of such Loan Party) authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of Credit;
(ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyContinuation;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower each Loan Party and each other manager or general partner of any Loan Party that is not also a 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; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiB) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiixi) the Disbursement Instruction Agreement executed by the Borrower effective a Borrowing Base Certificate calculated as of the Agreement Effective Date;
(xivxii) [intentionally omitted]a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending September 30, 2013;
(xvxiii) evidence satisfactory UCC, tax, bankruptcy, judgment and lien search reports with respect to the Administrative Agent of the payment in full of Borrower (or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of Subsidiary if any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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 Borrowing Base Property is a party;
(c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have 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
(d) The Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower Subsidiary) and each Borrowing Base Property in all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property or any Collateral related to such Property, including Tenant Deposit Accounts, other than Permitted Liens, and that no bankruptcy case or proceeding has been commenced against any such Loan Party and that is part of the CollateralUCC, the Administrative Agent shall have received each of the followingtax, in form bankruptcy, judgment and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements reports with respect to each deposit account required to be subject to Pledgor showing that there are no Liens of record on the Equity Interests of any Property Owner that are owned by a control agreement pursuant to the Collateral Agreement; andPledgor and that no bankruptcy case or proceeding has been commenced against such Pledgor;
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(fxiv) With respect to each Borrowing Base Property, each of the following items:
(A) operating statement for such Property for the nine consecutive months ended September 30, 2013, and an operating statement for such Property for each of the fiscal years ended December 31, 2011 and December 31, 2012, provided that, with respect to any period such Property was owned by the Borrower or a Subsidiary for less than two years, such information shall only be required to be delivered to the extent available to the Borrower, in each case certified by a representative of the Parent as being true and correct in all material respects and prepared in accordance with GAAP (except that the GAAP footnotes may be omitted);
(B) a current rent roll for such Property certified by a representative of the Parent as being true and correct in all material respects;
(C) a current or currently certified as-built survey of such Property certified by a surveyor licensed in the applicable jurisdiction to have been prepared in accordance with the then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys sufficient in all cases to delete the standard survey exceptions from the Mortgage Policy for such Property, together with photographs (interior and exterior) thereof; subject to a survey reading reasonably acceptable to Administrative Agent; provided, however, that notwithstanding the foregoing, Borrower may provide an existing ALTA/ACSM survey (an “Existing Survey”) rather than a new ALTA/ACSM survey so long as (1) there has been no construction at the Property since the date of such Existing Survey, (2) the Existing Survey is no more than 3years old, (3) the Borrower and/or applicable Subsidiary delivers a “no change” affidavit to the title company and Administrative Agent, (4) the Mortgage Policy with respect to such Property does not contain any general survey exception and includes a land same as survey endorsement and (5) such Existing Survey is acceptable to the title company issuing the Mortgage Policy;
(D) a zoning report prepared by a firm reasonably acceptable to the Administrative Agent with respect to such Property evidencing compliance with applicable zoning and land use laws and building ordinances or codes (including, without limitation, copies of final certificates of occupancy relating to such Property or such other evidence reasonably acceptable to the Administrative Agent that occupancy permits have been issued for such Property) or that such Property is the subject of a legal non-conforming use;
(E) a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determination for such Property, and if such determination indicates that such Property is in a special flood hazard area, (1) the Property Owner’s written acknowledgement of receipt of a written notification from the Administrative Agent, (x) indicating that such Property is located in a special flood hazard area and (y) identifying whether the community in which such Property is located is participating the National Flood Insurance Program and (2) copies of insurance policies or certificates of insurance, which policies shall name the Administrative Agent as mortgagee and lender’s loss payee and evidence flood insurance which is in the amount required in the following sentence and which complies with all mandatory flood insurance purchase requirements of the National Flood Insurance Act of 1994. If such Property is a Stabilized Property, the flood insurance shall be in an amount equal to the greater of (1) the Pre-Stabilized Property Value and (2) the maximum amount of coverage available through the National Flood insurance Program, and if such Property is a Stabilized Property, the flood insurance shall be in an amount equal to the greater of (1) the Stabilized Property Value and the amount of coverage available through the National Flood Insurance Program;
(F) a “Phase I” environmental assessment of such Property dated as of a date reasonably acceptable to the Administrative Agent, which report has been prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent, and any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Property, which assessments shall include reliance language acceptable to the Administrative Agent in its reasonable discretion (or the Administrative Agent is otherwise provided a reliance letter acceptable to the Agent in its reasonable discretion) and shall have receivedbeen prepared in accordance with current ASTM standards to satisfy the Environmental Protection Agency’s prevailing “All Appropriate Inquiries” requirements and indicating that, as of such date, no Hazardous Materials or other conditions on, under or with respect to the applicable Property constitute a material violation of any Environmental Laws requiring remediation pursuant to an Environmental Law other than (a) those which have been addressed through remediation completed to the satisfaction of all Governmental Authorities (or such other resolution which has been accepted in writing by either the Administrative Agent or all Governmental Authority(ies) with jurisdiction relating to both the applicable Property and such recognized environmental conditions (i.e., an approved B▇▇▇▇▇▇▇▇▇), and having authority to enforce any Environmental Laws with respect thereto) or (b) those which are conditions that are insurable, upon terms and conditions acceptable to the Administrative Agent, in its reasonable discretion, under the environmental insurance policy maintained by the Loan Parties;
(G) a structural engineering report or other property condition report for such Property dated as of a date reasonably acceptable to the Administrative Agent and prepared by an engineering firm reasonably acceptable to the Administrative Agent upon which the Administrative Agent and the other Lender Parties are expressly permitted to rely either pursuant to the terms of such report or pursuant to a reliance letter addressed to the Administrative Agent and the other Lender Parties in form and substance reasonably satisfactory to the Administrative Agent:;
(iH) A Mortgage a Property Management Contract Assignment covering the Property Management Agreement, if any, for such Property;
(I) copies of (1) all final certificates of occupancy and (2) any licenses, permits and approvals required for the use and operation of such Property;
(1) an ALTA mortgagee title policy (or its equivalent in non-ALTA jurisdictions) or unconditional commitments therefor with respect to each such Property (the “Mortgage Policy”), insuring that the Security Instrument encumbering such Property creates a valid and enforceable first priority Lien in favor of the Administrative Agent for the benefit of the Lender Parties, subject only to such restrictions, encumbrances, easements and reservations as are acceptable to the Administrative Agent, which Mortgage Policy shall (w) be in an amount of coverage equal to the Stabilized Property Value if such Property is a Stabilized Property or equal to the Pre-Stabilized Value if such Property is a Pre-Stabilized Property, (x) be from a title insurance company reasonably acceptable to the Administrative Agent, (y) include such available endorsements and reinsurance as the Administrative Agent may reasonably require, and (z) otherwise satisfy the reasonable title insurance requirements of the Administrative Agent, and (2) evidence reasonably satisfactory to the Administrative Agent that the Property Owner has paid to the title company all expenses and premiums of the title company and all other sums required in connection with the issuance of the Mortgage Policy and to the appropriate Governmental Authorities all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Security Instrument encumbering such property in the appropriate real estate records and the filling of all UCC financing statements related to any other Collateral related to such Property;
(K) a calculation of Implied Debt Yield with respect to any Property to be included in the calculation of Pre-Stabilized Borrowing Base Availability and the Borrowing Base Availability as a Pre-Stabilized Property, establishing in reasonable detail whether the Implied Debt Yield calculated with respect to such Property duly executed and delivered is at least 5.0%, certified by the record owner chief financial officer of the Parent as being true and correct;
(L) an Appraisal of such Property;
(M) a Security Instrument encumbering such Property in favor of the Administrative Agent for the benefit of the Lender Parties, the form of such Security Instrument to be modified as appropriate to conform to the Applicable Laws of the jurisdiction in which such Property is located;
(N) an Assignment of Leases and Rents;
(O) a list of all Tenant Deposit Accounts (specifying for each Tenant Deposit Account for such Property, the holder of such account, the name and address of the bank or securities intermediary at which such deposit account is held, and the account number) as of the Agreement Date;
(P) the Deposit Account Control Agreements required under Section 8.14.;
(Q) a UCC-1 financing statement to be filed in the office of the Secretary of State of the state in which the Property Owner of such Property is organized; if required by the Administrative Agent, a UCC-1 financing statement to be filed in the real property estate records where such Property is located; and a UCC-1 financing statement to be filed in the office of the Secretary of State in the state in which each of the Borrower and each Pledgor is organized;
(together with UCC fixture filings R) an opinion of counsel admitted to practice law in the jurisdiction in which such Property is located and acceptable to the Administrative Agent, addressed to the Lender Parties covering such legal matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(S) an Environmental Indemnity Agreement;
(T) copies of any applicable ground leases and estoppels from ground lessors or lessees, as applicable, relating to such Property if such estoppels are required to be provided by such ground lessor pursuant to such ground leases and if such estoppels are not so required, if requested by the Administrative Agent), which Mortgage the Borrower shall have been submitted used its commercially reasonable efforts to obtain such estoppels;
(U) if requested by Administrative Agent, use commercially reasonable efforts to deliver a reciprocal easement agreement estoppel with respect to any reciprocal easement agreements for recordation in such Property;
(V) if such Property is part of a condominium regime, copies of all condominium documents, including without limitation, the real property records recorded condominium declaration, condominium plans, condominium association bylaws, condominium association incorporation documents, if any, a condominium estoppel from the condominium board, declarant and/or association, as applicable, and such other documents as reasonably required by the Administrative Agent;
(W) with respect to any commercial space leases of such Property, tenant estoppel letters and, if requested by the county in which such Borrowing Base Property liesAdministrative Agent, subordination, non-disturbance and attornment agreements;
(X)
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks Agent and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, hereunder are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second First Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 and to request the issuance of Letters of CreditContinuation;
(ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party 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; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment or satisfaction in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
and (xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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;
(c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have 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
(d) The Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to (x) any original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such certificate together with an undated stock power for such certificate duly executed in blank by the registered owner thereof, (y) any original promissory note pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such promissory note together with an undated allonge for such promissory note duly executed in blank by the holder thereof, and (z) any other personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof[intentionally omitted;]
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Sources: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are 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 each applicable Lender (including any Designated Lender, if applicable but excluding any Lender that has requested that it not receive a NoteNotes (other than Swingline Notes)) and complying with the terms of Section 2.132.12.(a);
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially to be a party thereto, if any;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(viiiv) an opinion of in-house and outside counsel to the Borrower and the other Loan Parties Parties, addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viiiv) copies of 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 each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Person (or in the case of any Loan Party other than the Borrower, any other date acceptable to the Administrative Agent so long as such organizational documents are certified as of the Effective Date by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party);
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person;
(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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xiviii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiB) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiix) an Unencumbered Asset Certificate calculated as of September 30, 2018,
(x) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending June 30, 2018,
(xi) a Closing Certificate substantially in form of Exhibit U, executed on behalf of the Borrower by an authorized officer of the Borrower;
(xii) a Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xivxiii) [intentionally omittedReserved];
(xvxiv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement (includingamounts due and payable to the Administrative Agent, the Lead Arrangers and any of the Lenders, including without limitation, all fees, charges the reasonable fees and disbursements expenses of counsel to the Administrative Agent, have been paid; and
(xv) such other documents, agreements and instruments as the fees Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and expenses of any local counselbusiness projections, appraisersbudgets, consultants pro forma data and other advisors) amounts then due forecasts concerning the Borrower and payable its Subsidiaries delivered to the Administrative Agent and any the Lenders by or on behalf of the Lenders for which payment Borrower prior to the Agreement Date in connection with the transactions contemplated by this Agreement that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xviic) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) 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 (iA) have result in a Material Adverse Effect or (iiB) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(cd) 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 without the occurrence of any default under under, conflict with or violation of (iA) any Applicable Law or (iiB) 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 (A) have a Material Adverse Effect, or (B) 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;
(de) The the Borrower and each other Loan Party shall have provided (i) 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 antiAnti-money laundering rules and regulationsMoney Laundering Laws, including without limitation, the Patriot Act Act; and
(f) the Borrower and (ii) any Borrower each other Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
in each case, at least five (f5) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory Business Days prior to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;Effective Date.
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are initial Loans 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) Note and complying with the terms applicable provisions of Section 2.132.8.;
(iii) counterparts of the Security Documents Guaranty executed (and acknowledged, if applicable) by each of the parties theretoParent;
(iv) counterparts an opinion of the Guaranty executed by each general counsel of the Guarantors initially party theretoParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in Exhibit F;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, addressed to the Issuing Banks Administrative Agent and the Lenders Lenders, addressing the enforceability of the Loan Documents and covering such matters as the Administrative Agent may shall reasonably request;
(viiivi) a certificate of incumbency signed by the Secretary secretary or Assistant Secretary (or other individual performing similar functions) assistant secretary of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) ), on behalf of the Borrower Borrower, Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ixvii) 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;
(viii) the certificate or articles declaration of incorporation, articles trust of organization, the Parent and the certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) partnership of the Borrower and Borrower, in each other Loan Partycase, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of such Person LEGAL02/38482536v6 (a copy of which was provided in accordance with the Existing Credit Agreement), certified by the secretary or assistant secretary (or other individual performing similar functions) of the Parent and the Borrower as being true, correct and each such Loan Party; provided that, to unmodified in all respects since the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copydate so certified;
(xix) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Parent and the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 each such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xix) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of the Parent and the Borrower and each other Loan Party of the by-laws of such Person, if a corporation, the operating agreement, if a Parent and the 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 any agreement of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyBorrower;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel Fees payable to the Administrative Agent, the Titled Agents and the fees Lenders on or prior to the Effective Date;
(xii) a Compliance Certificate calculated as of September 30, 2015, giving pro forma effect to the financing contemplated by this Agreement and expenses the use of the proceeds of the Loans to be funded on the Effective Date;
(xiii) a payoff letter from Keybank National Association, as administrative agent under the Existing Term Loan Agreement, providing for the repayment in full of all loans outstanding thereunder; and
(xiv) such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any local counselof the Lenders any event, appraiserscondition, consultants situation or status since the date of the information contained in the financial and other advisors) amounts then due business projections, budgets, pro forma data and payable forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and any of the Lenders for which payment prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(bii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i1) have result in a Material Adverse Effect or (ii2) 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;
(ciii) 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 without the occurrence of any default under under, conflict with or violation of (i1) any Applicable Law or (ii2) 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, LEGAL02/38482536v6 making or giving of which, or the failure to make, give or receive which, which would not reasonably be likely to (A) have 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
(div) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided (i) all information requested adversely affect the transactions contemplated 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Sources: Term Loan Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The effectiveness of this Agreement on the date hereof (and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the initial making of a Loan or the issuance (or deemed issuance) of a Letter of CreditCredit on the date of such effectiveness, are if any) is subject to the satisfaction or waiver of the following conditions precedent:
(a) : The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties Loan Party party hereto;
(ii) to the extent requested by the relevant Lender, Revolving Notes and Term Notes executed by the BorrowerBorrowers, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.132.10(a) and the Swingline Note executed by the Borrowers;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(viv) counterparts of each other Loan Document required to be delivered on the Intercreditor Agreement Closing Date, including the Security Documents, executed by each of the parties Loan Party party thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(viiv) an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Borrower Borrowers and the other Loan Parties Parties, addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering as to such matters as the Administrative Agent may reasonably request;
(vi) an opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and the Lenders as to such matters as the Administrative Agent may reasonably request;
(vii) the certificate or articles of incorporation 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 Loan Party;
(viii) 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 Loan Party;
(ix) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the BorrowerBorrowers, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) on behalf of the Borrower Borrowers Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of Credit;
(ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyContinuation;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other 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 any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiB) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiixi) the Disbursement Instruction Agreement executed by the Borrower a Transfer Authorizer Designation Form effective as of the Agreement Closing Date;
(xivxii) [intentionally omitted];
(xvA) all filings and recordations that are necessary to perfect the security interests of the Administrative Agent, on behalf of the Secured Parties, in the Collateral and (B) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence reasonably satisfactory to the Administrative Agent that upon such filings and recordations such security interests constitute valid and perfected first priority Liens thereon (other than Customary Permitted Encumbrances arising under Applicable Law);
(xiii) UCC, tax, judgment and lien search reports with respect to each Loan Party in all necessary or appropriate jurisdictions;
(xiv) evidence that the Fees Fees, if any, then due and payable under Section 3.53.05, together with and, to the extent invoiced prior to the Closing Date, all other fees, expenses and reimbursement (includingamounts due and payable to the Arranger, without limitationthe Administrative Agent and any of the Lenders, all fees, charges including the fees and disbursements expenses of counsel to the Administrative Agent, have been paid;
(xv) insurance certificates, or other evidence, providing that the insurance coverage required under Section 7.04 (including both property and liability insurance) is in full force and effect;
(xvi) a certificate of the Chief Financial Officer of the Parent and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable Partnership to the Administrative Agent effect that (A) all representations and any warranties of the Lenders for Loan Parties contained in this Agreement and the other Loan Documents are true and correct, in all material respects (except to the extent any representation and warranty is qualified by materiality or Material Adverse Effect, in which payment case such representation and warranty shall be true and correct in all respects), as of the Closing Date (except to the extent such representations or warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date)), (B) upon giving effect to the transactions hereunder as of the Closing Date, no Default or Event of Default has been demandedoccurred and is continuing, (C) since December 31, 2011 no event or condition has occurred or arisen, either individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect and (D) all governmental and material third party approvals necessary in connection with the transactions contemplated hereby and all material governmental and third party approvals necessary in connection with the continuing operations of the Parent and its Subsidiaries shall have been paid or will obtained and be paid at closing;in full force and effect; and
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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;
(c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have 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
(d) The Borrower Borrowers and each other Loan Party shall have provided (i) 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 and (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderTitle III of Pub. L. 107-56 (signed into law October 26, 2001)).
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes and Term and, if applicable, Bid Rate Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) Note and complying with the terms applicable provisions of Section 2.13;2.12. and the Swingline Note executed by the Borrower; 4889-7534-3155, v. 14
(iii) counterparts of The Guaranty executed by the Security Documents executed (and acknowledged, if applicable) by each of the parties theretoParent;
(iv) counterparts An opinion of the Guaranty executed by each general counsel of the Guarantors initially party theretoParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in Exhibit I;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an An opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as addressed to the Administrative Agent may reasonably requestand the Lenders, addressing the enforceability of the Loan Documents;
(viiivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) ), on behalf of the Borrower Borrower, Notices of Revolving Borrowing, Notice of Term Loan Borrowing, Notices of Conversion and Conversion, Notices of Continuation Continuation, Notices of Swingline Borrowing and to request the issuance of requests for Letters of Credit;
(ixvii) 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;
(viii) the certificate or articles declaration of incorporation, articles trust of organization, the Parent and the certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) partnership of the Borrower and Borrower, in each other Loan Partycase, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyPerson;
(xix) a Certificate certificate of Good Standing good standing or certificate of similar meaning with respect to (A) the Parent and the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 each such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent and the Borrower and each other Loan Party of the by-laws of such Person, if a corporation, the operating agreement, if a Parent and the 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 any agreement of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyBorrower;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.53.6., together with all and any other feesFees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date, and of the reasonable costs and expenses of the Administrative Agent and reimbursement the Titled Agent (including, without limitation, all the fees, charges and disbursements of counsel to the Administrative Agent);
(xii) a Compliance Certificate calculated as of September 30, 2022, 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; 4889-7534-3155, v. 14
(xiii) (A) All documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party, in each case at least five days prior to the fees Effective Date, and expenses (B) at least five days prior to the Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Loan Party;
(xiv) a Notice of any local counselRevolving Borrowing and a Notice of Term Loan Borrowing;
(xv) a payoff letter reasonably satisfactory to the Administrative Agent evidencing repayment in full and termination of all loans, appraisers, consultants commitments and other advisorsobligations under the Existing Revolver Credit Agreement and the Existing Term Loan Agreement, termination of all agreements relating thereto and the release of all Liens granted in connection therewith, if any, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing, in each case subject only to repayment in full;
(xvi) amounts then due The results of a recent UCC lien search in the jurisdiction of organization of the Borrower and payable the Parent, which search results shall reveal no Liens on any of the assets of the Borrower or Parent except for Liens permitted by Section 9.4;
(xvii) A certificate signed by a Responsible Officer, certifying that the conditions set forth in Section 5.1.(b) have been satisfied;
(xviii) such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) Both immediately before and immediately after giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, (A) no Default or Event of Default exists, (B) the representations and warranties made or deemed made by each Loan Party in the Loan Documents to which it is a party are true and correct in all respects on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in all respects on and as of such earlier date);
(ii) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and any of the Lenders for which payment prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(biii) 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 (i1) have result in a Material Adverse Effect or (ii2) restrain or enjoin, impose 4889-7534-3155, v. 14 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;
(civ) 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 without the occurrence of any default under under, conflict with or violation of (i1) any Applicable Law or (ii2) 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 (A) have 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
(dv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided (i) all information requested adversely affect the transactions contemplated 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties Trust)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes, Term Notes and Term and, if applicable, Bid Rate Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) Note and complying with the terms applicable provisions of Section 2.132.12. and the Swingline Note executed by the Borrower;
(iii) counterparts of The Guaranty executed by the Security Documents executed (and acknowledged, if applicable) by each of the parties theretoParent;
(iv) counterparts An opinion of the Guaranty executed by each general counsel of the Guarantors initially party theretoParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in Exhibit I;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an An opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as addressed to the Administrative Agent may reasonably requestand the Lenders, addressing the enforceability of the Loan Documents;
(viiivi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) ), on behalf of the Borrower Borrower, Notices of Revolving Borrowing, Notice of Term Loan Borrowing, Notices of Conversion and Conversion, Notices of Continuation Continuation, Notices of Swingline Borrowing and to request the issuance of requests for Letters of Credit;
(ixvii) 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;
(viii) the certificate or articles declaration of incorporation, articles trust of organization, the Parent and the certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) partnership of the Borrower and Borrower, in each other Loan Partycase, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyPerson;
(xix) a Certificate certificate of Good Standing good standing or certificate of similar meaning with respect to (A) the Parent and the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state 4930-5233-2131, v. 14930-5233-2131, v. 9 State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 each such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xix) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Parent and the Borrower and each other Loan Party of the by-laws of such Person, if a corporation, the operating agreement, if a Parent and the 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 any agreement of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyBorrower;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.53.6., together with all and any other feesFees payable to the Administrative Agent, the Titled Agents and the Lenders on or prior to the Effective Date, and of the reasonable costs and expenses of the Administrative Agent and reimbursement the Titled Agent (including, without limitation, all the fees, charges and disbursements of counsel to the Administrative Agent);
(xii) a Compliance Certificate calculated as of September 30, 2022, 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;
(A) All documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including USA PATRIOT Act, and a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party, in each case at least five days prior to the fees Effective Date, and expenses (B) at least five days prior to the Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Loan Party;
(xiv) a Notice of any local counselRevolving Borrowing and a Notice of Term Loan Borrowing;
(xv) a payoff letter reasonably satisfactory to the Administrative Agent evidencing repayment in full and termination of all loans, appraisers, consultants commitments and other advisorsobligations under the Existing Revolver Credit Agreement and the Existing Term Loan Agreement, termination of all agreements relating thereto and the release of all Liens granted in connection therewith, if any, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing, in each case subject only to repayment in full;
(xvi) amounts then due The results of a recent UCC lien search in the jurisdiction of organization of the Borrower and payable the Parent, which search results shall reveal no Liens on any of the assets of the Borrower or Parent except for Liens permitted by Section 9.4;
(xvii) A certificate signed by a Responsible Officer, certifying that the conditions set forth in Section 5.1.(b) have been satisfied;
(xviii) such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request; and 4930-5233-2131, v. 14930-5233-2131, v. 9
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) Both immediately before and immediately after giving effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date, (A) no Default or Event of Default exists, (B) the representations and warranties made or deemed made by each Loan Party in the Loan Documents to which it is a party are true and correct in all respects on and as of the Effective Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in all respects on and as of such earlier date);
(ii) There shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and any of the Lenders for which payment prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(biii) 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 (i1) have result in a Material Adverse Effect or (ii2) 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;
(civ) 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 without the occurrence of any default under under, conflict with or violation of (i1) any Applicable Law or (ii2) 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 (A) have 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
(dv) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided (i) all information requested adversely affect the transactions contemplated 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are initial Term 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms applicable provisions of Section 2.132.8.;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the The Guaranty executed by each of the Guarantors initially party theretoOperating Partnerships;
(iv) An opinion of counsel to the Loan Parties, addressed to the Agent, and the Lenders, addressing the matters set forth in Exhibit E;
(v) counterparts The articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Intercreditor Agreement executed Borrower and each other Loan Party certified as of a recent date by each the Secretary of State of the parties theretostate of formation of such Loan Party;
(vi) complete and correct copies 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 executed Second Lien Documentsstate of formation of such Loan Party;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and and, in the case of the Borrower, the officers of the Borrower then authorized 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 Continuation and Notices of Continuation and to request the issuance of Letters of CreditConversion;
(ixviii) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of (i) 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 of such Loan Party in the case of any other form of legal entity; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
entity and (xiiii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiiiix) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the The Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent3.6., and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and Fees payable to the Administrative Agent and the Lenders on or prior to the Effective Date;
(x) A Compliance Certificate calculated as of September 30, 2005 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Effective Date), and calculations demonstrating that all Indebtedness proposed to be incurred by the Borrower on the Effective Date is permitted under each of the Senior Note Indentures and that no default under any of the Senior Note Indentures will exist as of such date;
(xi) A copy of each of the documents, instruments and agreements evidencing any of the Indebtedness described on Schedule 6.1.(g), in each case certified as true, correct and complete by the chief executive officer or chief financial officer of the Borrower, but only if any such documents, instruments and agreements are not otherwise publicly available;
(xii) A Notice of Borrowing for the initial Term Loans; and
(xiii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any of the Lenders for which payment any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets and pro forma data concerning the Borrower and its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(bii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i1) have result in a Material Adverse Effect or (ii2) 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;
(ciii) The Borrower and the other Loan Parties its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under under, conflict with or violation of (i1) any Applicable Law or (ii2) 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 (A) have 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
(div) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided (i) all information requested adversely affect the transactions contemplated 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Sources: Term Loan Agreement (Heritage Property Investment Trust Inc)
Initial Conditions Precedent. The effectiveness obligation of each Lender to make the initial Advance under this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are is subject to the satisfaction or waiver fulfilment of the following conditions precedent:
precedent at the time such Advance is made (a) The Administrative Agent shall have received in each of the followingcase, in form and substance satisfactory to the Administrative Agent:, acting reasonably):
(a) no Default or Event of Default has occurred or is continuing or would arise immediately after giving effect to or as a result of such Advance;
(b) such Advance will not violate any Applicable Law;
(c) no order, judgment or decree of any court, arbitrator or Governmental Agency shall purport to enjoin or restrain the Lenders from making an Advance;
(d) there is not pending or threatened, any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration by, against or affecting any Credit Party or any property of any Credit Party that has not been disclosed to the Administrative Agent by the Borrower in writing, and nothing has occurred and there has been no development in any such action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect;
(e) each of the representations and warranties of the Borrower contained in Article 5 and of the Credit Parties contained in any other Credit Document are true and correct on the date of the Borrowing Notice relating to such Advance and on the date of such Advance as if such representations and warranties were made on each such date;
(f) there has not occurred any change of circumstance or event since the date hereof, nor has any Administrative Agent become aware of any facts not previously disclosed or known, which the Administrative Agent determines could have a Material Adverse Effect;
(g) delivery of a certificate from a senior officer of each Credit Party in the form of Exhibit “D”: (i) attaching true copies of (A) the constating documents and by- laws including all amendments thereto, if any, (B) all resolutions of the board of directors or shareholders, as the case may be, approving the borrowing and other matters contemplated by this Agreement and the other Credit Documents to which it is a party and (C) a list of the officers and directors authorized to sign agreements together with their specimen signatures and (ii) certifying that all necessary permits and licenses relating to the operation of, and production at, the San Francisco Mine have been obtained and none have been rescinded, cancelled or otherwise terminated in any respect;
(h) delivery of a certificate of status, compliance or like certificate with respect to each of the Credit Parties issued by the appropriate Governmental Entity of the jurisdiction of its incorporation and of each jurisdiction in which it owns any material assets or carries on any material business;
(i) counterparts delivery of this Agreement executed by a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit “C”;
(j) each of the Credit Documents specified in Section 2.10 have been duly executed and delivered by each Credit Party thereto and is in full force and effect enforceable against such parties heretothereto in accordance with its respective terms;
(iik) Revolving Notes evidence of registration or other perfection of the Security under the Security Documents in such jurisdictions as the Administrative Agent may require to ensure that such Security creates legal, valid, binding, enforceable and Term Notes executed by first- priority security interests in the Borrowerassets to which such Security relates, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) enforceable against third parties, trustees in bankruptcy and complying with the terms of Section 2.13similar officials;
(iiil) counterparts delivery of all discharges, subordination agreements, waivers and confirmations as may be required to ensure that all obligations under the Credit Documents are secured by first priority Liens on the property and assets of each Credit Party with such exceptions as are permitted pursuant to this Agreement or any of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien other Credit Documents;
(viim) an opinion delivery of favourable opinions of counsel to the Borrower each Credit Party, in customary form and the other Loan Parties addressing customary matters, addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as Administrative Agent’s Counsel;
(n) evidence showing the Administrative Agent may reasonably request;
(viii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 Finance Parties) as loss payee and Notices of Continuation and to request the issuance of Letters of Creditadditional insured on each Credit Party’s insurance policies;
(ixo) all Fees and other amounts then payable under 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (Credit Documents and any state department of taxation, as applicable) of each state in which such Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party 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; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other feesreasonable costs, expenses and reimbursement disbursements (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the legal fees and expenses of any local counsel, appraisers, consultants and other advisorsexpenses) amounts then due and payable to incurred by the Administrative Agent or any Lender in connection with the negotiation, preparation, execution and delivery of the Credit Documents and any due diligence or other matters relating to any of the Lenders for which payment has transactions contemplated in any of the Credit Documents have been demandedpaid in full;
(p) evidence of repayment in full of all the Notes and evidence that the Note Indenture, each of the Notes and all guarantees and all Liens (and all other documents, instruments, registrations, filings and similar evidence) relating thereto have been or will, simultaneously with such Advance, have been paid indefeasibly, fully and unconditionally terminated, discharged and released and none of the Credit Parties has any obligation or will be paid at closingliability in relation thereto;
(xviiq) receipt of all Authorizations which the Administrative Agent may require, including, all approvals from the Exchange in relation to the transactions contemplated by this Agreement and/or the other Credit Documents;
(r) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable Borrower has issued 193,237 Common Shares to the Requisite LendersOriginal Lender as duly paid and non assessable shares, as payment of the working capital facility bonus; and
(xviiis) a the Borrower has issued 108,696 Common Shares to the Original Lender as duly executed paid and delivered modification to or an agreement to modify the PM Gallery Loan Agreementnon assessable shares, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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;
(c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability payment of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(d) The Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lenderstandby facility break fee.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks and the Lenders to effect or permit make the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, are initial Loans 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 Counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) Note and complying with the terms applicable provisions of Section 2.132.8.;
(iii) counterparts of the Security Documents Guaranty executed (and acknowledged, if applicable) by each of the parties thereto;Parent; LEGAL02/36006473v7
(iv) counterparts an opinion of the Guaranty executed by each general counsel of the Guarantors initially party theretoParent and the other Loan Parties, addressed to the Administrative Agent and the Lenders, addressing the matters set forth in Exhibit F;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second Lien Documents;
(vii) an opinion of ▇▇▇▇▇▇ & Bird, LLP, counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, addressed to the Issuing Banks Administrative Agent and the Lenders Lenders, addressing the enforceability of the Loan Documents and covering such matters as the Administrative Agent may shall reasonably request;
(viiivi) a certificate of incumbency signed by the Secretary secretary or Assistant Secretary (or other individual performing similar functions) assistant secretary of each Loan Party the Parent with respect to each of the officers of such Loan Party the Parent authorized to execute and deliver on behalf of the Parent and the Borrower the Loan Documents to which such Loan Party the Parent or the Borrower is a party, party and in the case of the Borrower, the officers of the Borrower then authorized to execute and deliver (or make by telephone in the case of Notices of Conversion or Continuation) ), on behalf of the Borrower Borrower, Notices of Borrowing, Notices of Conversion and Notices of Continuation and to request the issuance of Letters of CreditContinuation;
(ixvii) 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;
(viii) the certificate or articles declaration of incorporation, articles trust of organization, the Parent and the certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) partnership of the Borrower and Borrower, in each other Loan Partycase, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of such Person (a copy of which was provided in accordance with the Existing Credit Agreement), certified by the secretary or assistant secretary (or other individual performing similar functions) of the Parent and the Borrower as being true, correct and each such Loan Party; provided that, to unmodified in all respects since the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copydate so certified;
(xix) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Parent and the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state State of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 each such Borrowing Base Property Person is located, if different from the state of formation of such Personrequired to be so qualified where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xix) copies certified by the Secretary secretary or Assistant Secretary assistant secretary (or other individual performing similar functions) of the Parent and the Borrower and each other Loan Party of the by-laws of such Person, if a corporation, the operating agreement, if a Parent and the 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 any agreement of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copyBorrower;
(xiixi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.53.6., together with all and any other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel Fees payable to the Administrative Agent, the Titled Agents and the fees Lenders on or prior to the Effective Date;
(xii) a Compliance Certificate calculated as of September 30, 2015, giving pro forma effect to the financing contemplated by this Agreement and expenses the use of the proceeds of the Loans to be funded on the Effective Date;
(xiii) a payoff letter from Keybank National Association, as administrative agent under the Existing Term Loan Agreement, providing for the repayment in full of all loans outstanding thereunder; and
(xiv) such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request; and LEGAL02/36006473v7
(b) In the good faith judgment of the Administrative Agent and the Lenders:
(i) There shall not have occurred or become known to the Administrative Agent or any local counselof the Lenders any event, appraiserscondition, consultants situation or status since the date of the information contained in the financial and other advisors) amounts then due business projections, budgets, pro forma data and payable forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and any of the Lenders for which payment prior to the Agreement Date that has been demanded, have been paid had or will could reasonably be paid at closingexpected to result in a Material Adverse Effect;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(bii) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i1) have result in a Material Adverse Effect or (ii2) 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;
(ciii) 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 without the occurrence of any default under under, conflict with or violation of (i1) any Applicable Law or (ii2) 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 (A) have 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
(div) The Borrower There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and each other Loan Party shall have provided (i) all information requested adversely affect the transactions contemplated 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each LenderLoan Documents.
(e) With respect to any personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof;
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
Appears in 1 contract
Sources: Term Loan Agreement (Corporate Office Properties, L.P.)
Initial Conditions Precedent. The effectiveness of this Agreement and the obligation of the Administrative Agent, the Issuing Banks Agent and the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance (or deemed issuance) of a Letter of Credit, hereunder are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (excluding any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.13;
(iii) counterparts of the Security Documents executed (and acknowledged, if applicable) by each of the parties thereto;
(iv) counterparts of the Guaranty executed by each of the Guarantors initially party thereto;
(v) counterparts of the Intercreditor Agreement executed by each of the parties thereto;
(vi) complete and correct copies of the executed Second First Lien Documents;
(vii) an opinion of counsel to the Borrower and the other Loan Parties addressed to the Administrative Agent, the Issuing Banks Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(viii) 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 Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized 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 and to request the issuance of Letters of CreditContinuation;
(ix) 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 Borrower and each other Loan Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of the State of formation of the Borrower and each such Loan Party; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(x) a Certificate of Good Standing or certificate of similar meaning with respect to (A) the Borrower and each other Loan Party (and in the case of a Loan Party that is a limited partnership, the general partner of such Loan Party) issued as of a recent date by the Secretary of State (or comparable Governmental Authority) of the state of formation of each such Person and (B) each Loan Party that owns a Borrowing Base Property, 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 Borrowing Base Property is located, if different from the state of formation of such Person;
(xi) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party 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; provided that, to the extent any of the foregoing organizational documents for any Guarantor have not been amended or modified from those previously delivered to the Administrative Agent, an officer’s certificate from the applicable Guarantor certifying the absence of changes to such previously delivered organizational documents may be delivered in place of such certified copy;
(xii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each other Loan Party of all corporate, partnership, member or other necessary action taken by each such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(xiii) the Disbursement Instruction Agreement executed by the Borrower effective as of the Agreement Date;
(xiv) [intentionally omitted];
(xv) evidence satisfactory to the Administrative Agent of the payment or satisfaction in full of or satisfaction of all amounts due to all lenders under the Existing Revolver/Term Loan Agreement and the Existing Term Loan Agreement;
(xvi) evidence satisfactory to the Administrative Agent that the Fees then due and payable under Section 3.5, together with all other fees, expenses and reimbursement (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent, and the fees and expenses of any local counsel, appraisers, consultants and other advisors) amounts then due and payable to the Administrative Agent and any of the Lenders for which payment has been demanded, have been paid or will be paid at closing;
(xvii) the Effective Date Annual Business Plan, which shall be in form and substance reasonably acceptable to the Requisite Lenders; and
(xviii) a duly executed and delivered modification to or an agreement to modify the PM Gallery Loan Agreement, in form and substance reasonably acceptable to all Lenders (the “PM Gallery Loan Modification”), providing for the modifications outlined on the Summary of Terms set forth on Schedule 6.1(a)(xviii).
(b) No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) have a Material Adverse Effect or (ii) 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;
(c) 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 without the occurrence of any default under or violation of (i) any Applicable Law or (ii) 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 (A) have 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
(d) The Borrower and each other Loan Party shall have provided (i) 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 (ii) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower to the Administrative Agent and each Lender.
(e) With respect to (x) any original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such certificate together with an undated stock power for such certificate duly executed in blank by the registered owner thereof, (y) any original promissory note pledged pursuant to the Security Documents, the Borrower shall have delivered to the First Lien Administrative Agent, subject to the terms of the Intercreditor Agreement, each such promissory note together with an undated allonge for such promissory note duly executed in blank by the holder thereof, and (z) any other personal property owned by a Borrower or Loan Party and that is part of the Collateral, the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) (A) if certificated, original stock certificates or other certificates evidencing the certificated Equity Interests 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 and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof[intentionally omitted;]
(ii) the results of a Lien search made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(iii) evidence of property, business interruption and liability insurance covering each Loan Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies, in satisfaction of the insurance requirements contained herein. The Administrative Agent acknowledges and agrees that the evidence of such insurance provided to Administrative Agent in connection with the Existing Bridge Loan satisfies this condition;
(iv) duly executed counterparts of Deposit Account Control Agreements with respect to each deposit account required to be subject to a control agreement pursuant to the Collateral Agreement; and
(v) UCC-1 Financing Statements filed (or to be filed concurrently with the closing of the initial Loan hereunder) naming each Subsidiary party to a Security Document as debtor and appropriate for filing in the applicable jurisdiction of formation of such Subsidiary, as required or authorized by the applicable Security Document.
(f) With respect to each Borrowing Base Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
(i) A Mortgage with respect to each such Borrowing Base Property duly executed and delivered by the record owner of such real property (together with UCC fixture filings if requested by the Administrative Agent), which Mortgage shall have been submitted for recordation in the real property records of the county in which such Borrowing Base Property lies;
(ii) Appraisals of all Borrowing Base Properties;
(iii) a policy or policies of title insurance (or a commitment on behalf of the title insurance company to issue its title policy as of the Effective Date in the form of a pro forma policy approved by the Administrative Agent) in the amount equal to (x) 125% of the Closing Date Appraised Value of such Borrowing Base Property, minus (y) the Allocated Loan Amount (as defined in the First Lien Credit Agreement) of such Borrowing Base Property, by ▇▇▇▇▇▇▇ Title Guaranty Company (the “Title Company”), with re-insurance in the amounts and from such other title companies as the Administrative Agent requires, insuring the Lien of each such Mortgage as a second priority Lien on the real property described therein, free of any other Liens except for Permitted Liens, together with such customary endorsements as the Administrative Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates and available based upon the existing survey and zoning reports for such Borrowing Base Property, together with evidence reasonably satisfactory to the Administrative Agent of payment of all expenses and premiums of the Title Company and all other sums required in connection with the issuance of each title policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the appropriate real estate records;
(iv) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such real property location in the United States (together with a notice about special flood hazard area status and flood disaster assistance, which, if applicable, shall be duly executed by the applicable Loan Party relating to such real property) and (B) if any such real property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under Applicable Law, including Regulation H of the FRB and the other Flood Insurance Laws and as required under Section 8.6;
(v) customary legal opinions in form and substance reasonably satisfactory to the Administrative Agent with respect to the mortgagor of such Mortgage and the enforceability and perfection of the applicable Mortgage and such other matters as the Administrative Agent shall reasonably require;
(vi) owner’s title affidavits in reasonable form if necessary to induce the Title Company to issue the title policies and endorsements contemplated above; and
(vii) zoning reports with respect to each Borrowing Base Property.
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Sources: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)