Conditions Precedent to Initial Extension of Credit The obligation of each Lender to make its initial Advance to any Borrower, and the obligation of each Fronting Bank to issue its initial Letter of Credit, are subject to the conditions precedent that on or before the date of any such Extension of Credit: (a) The Administrative Agent shall have received the following, each dated the same date (except for the financial statements referred to in paragraph (iv)), in form and substance satisfactory to the Administrative Agent and (except for any Note) with one copy for each Fronting Bank and each Lender: (i) This Agreement, duly executed by each of the parties hereto, and Notes requested by any Lender pursuant to Section 2.18(d), duly completed and executed by each Borrower and payable to such Lender; (ii) Certified copies of the resolutions of the Board of Directors of each Borrower approving this Agreement and the other Loan Documents to which it is, or is to be, a party and of all documents evidencing any other necessary corporate action with respect to this Agreement and such Loan Documents; (iii) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (A) the names and true signatures of the officers of such Borrower authorized to sign each Loan Document to which such Borrower is, or is to become, a party and the other documents to be delivered hereunder and (B) that attached thereto are true and correct copies of the Organizational Documents of such Borrower, in each case as in effect on such date; (iv) Copies of all the Disclosure Documents (it being agreed that those Disclosure Documents publicly available on the SEC’s ▇▇▇▇▇ Database or on FE’s website no later than the Business Day immediately preceding the date of such Extension of Credit will be deemed to have been delivered under this clause (iv)); (v) An opinion of ▇▇▇▇▇ Day, special counsel for each Borrower; (vi) A certificate of an Authorized Officer of each Borrower certifying the satisfaction of the conditions specified in Section 3.02(i) with respect to such Borrower; and (vii) Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank or any other Lender may reasonably request, all in form and substance satisfactory to the Administrative Agent, such Fronting Bank or such other Lender (as the case may be). (b) The Administrative Agent shall have received the Fee Letters, duly executed by each of the parties thereto. (c) The Borrowers shall have paid, or caused to be paid, all of the fees payable in accordance with the Fee Letters. (d) Prior to or concurrently with the making of such initial Extension of Credit, all amounts outstanding under the Existing FE Credit Agreement, in each case, whether for principal, interest, fees or otherwise, shall have been paid in full, all commitments to lend thereunder shall have been terminated, and the Existing FE Credit Agreement shall have been terminated. (e) The Administrative Agent shall have received all documentation and information required by regulatory authorities under applicable “know your customer” and anti- money laundering rules and regulations, including without limitation the Patriot Act (including, for the avoidance of doubt, Beneficial Ownership Certifications), to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders prior to the date hereof.
Conditions Precedent to Each Extension of Credit The obligation of each Lender, the Swingline Bank and each LC Issuing Bank, as applicable, to make each Extension of Credit to be made by it hereunder (other than in connection with any Borrowing that would not increase the aggregate principal amount of Advances outstanding immediately prior to the making of such Borrowing) shall be subject to the satisfaction of the conditions precedent set forth in Section 3.01 and on the date of such Borrowing: (a) The following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by the applicable Borrower of the proceeds of any such Extension of Credit shall constitute a representation and warranty by such Borrower that on the date of such Extension of Credit such statements are true): (i) The representations and warranties of such Borrower contained in Section 4.01 (other than the representation and warranty in Section 4.01(e) and the representation and warranty set forth in the last sentence of Section 4.01(f)) are true and correct in all material respects on and as of the date of such Extension of Credit, before and after giving effect to such Extension of Credit and to the application of the proceeds therefrom, as though made on and as of such date, and (ii) No event has occurred and is continuing with respect to such Borrower, or would result from such Extension of Credit or from the application of the proceeds therefrom, that constitutes a Default. (b) The Administrative Agent shall have received such other approvals, opinions or documents as any Lender or LC Issuing Bank through the Administrative Agent may reasonably request.
Conditions Precedent to Initial Loans In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied: (a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. (b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens. (c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent. (d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents. (e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (f) Agent shall have received a written opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent. (g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification. (h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent. (i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008. (j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group). (k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date. (l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion. (m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor. (n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Conditions Precedent to Initial Loan This effectiveness of this Agreement is subject to the fulfillment, to the reasonable satisfaction of Agent and its counsel, of each of the following conditions (unless otherwise waived by Agent): (a) Agent shall have received this Agreement and each other Loan Document, executed and delivered by each Borrower and each Lender; (b) Agent shall have received a UCC search from the Secretary of State of the state of each Borrower’s organization, the results of which shall be satisfactory to Agent, and shall have filed a UCC-1 financing statement in such state, in form and substance satisfactory to Agent with respect to each Borrower; (c) Agent shall have received a certificate of status with respect each Borrower dated within 20 days of the date of this Agreement, such certificate to be issued by the Secretary of State of the State of the state of each Borrower’s organization, which certificate shall indicate that such Borrower is in good standing in such state; (d) Agent shall have received a true and correct copy of (i) the certificate of incorporation of FS CREIT and Charter, and (ii) the certificate of formation of Finance Holdings, in each case, certified by the Secretary of State of the State of the state of each Borrower’s organization within 20 days of the date of this Agreement; (e) Agent shall have received a true and correct copy of (i) the Bylaws, certified by a Responsible Officer of FS CREIT as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement and (ii) the operating agreement of Finance Holdings certified by a Responsible Officer of Finance Holdings as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement; (f) Agent shall have received a true and correct copy of the Advisory Agreements, certified by a Responsible Officer of FS CREIT as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement; (g) Agent shall have received a certificate of a Responsible Officer of the Borrowers (i) attesting to the written consent of the board of directors or similar governing body of such Borrower authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents and (ii) attesting to the incumbency and signatures of the Responsible Officers of such Borrower executing on behalf of such Borrower this Agreement and the other Loan Documents. (h) Agent shall have received full payment of all of the out-of-pocket fees, costs, and expenses of Agent (including the reasonable and documented fees and expenses of Agent’s counsel) incurred in connection with the preparation, negotiation, execution, and delivery of this Agreement and the other Loan Documents; (i) Agent shall have received the written opinions, dated the date of this Agreement, of counsel to the Borrowers, in form and substance satisfactory to Agent and its counsel; (j) Agent shall have received a certificate executed by a Responsible Officer of each Borrower to the effect that such Borrower has obtained all orders, consents, approvals, and other authorizations and has made all filings and other notifications (governmental or otherwise) as may be required in connection with the transactions contemplated by the Loan Documents; (k) no litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order shall be pending or overtly threatened that could reasonably be expected to have, in the reasonable opinion of Agent, a Material Adverse Effect; (l) Agent shall have received a Compliance Certificate duly executed by a Responsible Officer of Administrative Borrower; (m) Agent shall have received a Beneficial Ownership Certification with respect to the Borrowers at least two (2) Business Days prior to the Closing Date; (n) Agent shall have received a Control Agreement with respect to the Distribution Account; and (o) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent and its counsel.
Conditions Precedent to Initial Purchase The initial purchase hereunder is subject to the condition precedent that the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser (as the Buyer’s assignee) shall have received, on or before the Closing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance satisfactory to the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser (as the Buyer’s assignee): (a) a copy of the resolutions or unanimous written consent of the board of directors or other governing body of each Originator approving this Agreement and the other Transaction Documents to be executed and delivered by it and the transactions contemplated hereby and thereby, certified by the Secretary or Assistant Secretary of such Originator; (b) good standing certificates for each Originator issued as of a recent date acceptable to the Buyer and the Administrative Agent (as the Buyer’s assignee) by the Secretary of State (or similar official) of the jurisdiction of such Originator’s organization or formation and each other jurisdiction where such Originator is required to be qualified to transact business, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect with respect to the Originator and the Receivables sold by it to the Buyer hereunder; (c) a certificate of the Secretary or Assistant Secretary of each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser (as the Buyer’s assignee) may conclusively rely until such time as the Servicer, the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser (as the Buyer’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c)); (d) the certificate or articles of incorporation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws or other governing documents of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator; (e) proper financing statements (Form UCC-1) that have been duly authorized and name each Originator as the debtor/seller and the Buyer as the buyer/assignor secured party (and the Administrative Agent, for the benefit of the Purchasers, as assignee secured party) of the Receivables sold by such Originator as may be necessary or, in the Buyer’s or the Administrative Agent’s (as the Buyer’s assignee) reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership or security interest in such Receivables and the Related Rights in which an ownership or security interest has been assigned to it hereunder; (f) a written search report from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) listing all effective financing statements that name the Originators as debtors or sellers and that are filed in all jurisdictions in which filings may be made against such Originator pursuant to the applicable UCC, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, prior to the date hereof), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search reports (including, without limitation, liens of the PBGC) from a Person satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee) showing no evidence of such liens filed against any Originator; (g) favorable opinions of counsel to the Originators, in form and substance satisfactory to the Buyer, the Administrative Agent (as the Buyer’s assignee) and each Purchaser (as the Buyer’s assignee); (h) a copy of a Subordinated Note in favor of each Originator, duly executed by the Buyer; and (i) evidence (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered by it in connection herewith and (ii) that each of the conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Buyer’s and the Administrative Agent’s (as the Buyer’s assignee) satisfaction.